Rights to cancel order

[garyscottadamson]

I make (by hand) and sell furniture from my website. Sometimes, customers try and cancel orders when I've already started making them.

Obviously from my perspective this isn't good.

My question is: In terms of distance selling regulations, I see that customers are allowed a 15 day cooling off period and further allowed to return items bought online 15 days after they've been delivered.

I also see however that there is an exemption for goods that are custom made/ made to order.

My terms and conditions state:

All our furniture is made specially for you: it is not held in stock. Products that are made specially for you may not be cancelled by you, either before or after delivery.

All our furniture with the exception of clearance items are made to your exact specifications and therefore cannot be cancelled once we have accepted your order.

These orders fall outside the Distance selling regulations (2000) which states that personalised goods or goods made to a consumer’s specification are exempt.

For all other furniture orders you have the right to cancel the order either before delivery, or within 14 days of delivery. This does not affect your statutory rights.​

Does this sufficiently cover me from being compelled to offer refunds?

Could the customer claim:

• They weren't made aware of the T&C's before purchasing
• They were unaware the items were custom made and fell out of the scope of this law

My T&C's are available in the websites footer on every page and the sofa is described as "handmade" rather than made to order.

What are your thoughts?

 

[ethical PR]

I don't know the legal answer, but from a customer point of view - why don't you make it clear as part of the purchasing process, so they need to tick a box to confirm they have read this, before they can complete an order.

 

[NRLtd]

I'm not a lawyer, but I don't believe you can "over write" someone's legal rights just buy having a relevant clause in your terms and conditions.

As for what genuinely constitutes a custom made/made to order is an open term. The example I was once given was along the lines of: a computer constructed from regular component parts to the customer's specification wouldn't necessarily qualify as made to order/customer specific as the computer could presumably be dismantled and the parts used on another computer. However, tee shirts with personalised printing (e.g. names, dates, logos etc.) would probably be of little use to anyone but the customer and could therefore qualify and made to order/customer specific.

So it all depends on how bespoke your furniture is, could it possibly be of any use to someone else, or is it made with more exacting requirements so that it would not fit in another home (for example)...?

 

[myfairworld]

I think the term 'handmade' isn't sufficient for your needs. Much of the stock in my shop is 'handmade' by individual craftspeople but it was made and completed before it actually arrived in my shop and is not geared to any one particular purchaser. I think many people would interpret the term 'handmade' as simply indicating made by a craftsperson as opposed to mass produced, but not necessarily indicating something made uniquely for one particular purchaser.

 

[Supercoach]

In the context you have given 'handmade' seems to be a marketing term and 'custom made' one that fits the legal situation.
Also, I think your terms are very fairly and ethically described and with a little more care in the wording your terms would stave off all but the most determined demands for refunds.

 

[Gecko001]

"made to customer's specification". That is what the clause states. Not homemade, or custom made. Built-in furniture would probably be to the "customer's specification" as they would have to provide the exact dimensions. I am not so sure about freestanding furniture, if they were only asking for a certain style, type of wood, colour etc. The fact that they are hand made by you is irrelevant as far as I can see. That is just method of construction.

 

[garyscottadamson]

Does the fact that the furniture is only made because they have requested it to be made, not count as made to order?

As a our business model is low volume and high price (we only make around 3-4 sofas per week) and regularly turn away business because of our small size, it's quite destructive when a customer orders something, we start work on it and then they cancel halfway through the process.

The furniture could easily be used by someone else, but considering the amount of customisation options we offer (around 3 million possibilities when you calculate all the options), it's highly unlikely than anyone in the future will select that specific congfiguration.

 

[billmccallum1957]

It's a long time since I sold furniture, but I did sell items made to order.

What we used to do is give the customer the terms and conditions separately, with the notice that they can't cancel the order after the work has started as a highlight first paragraph.

We then asked them to pay the deposit and sign that they agree to the terms.

 

[smallclaimsassistance]

There is a very easy way around this. S36 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, states:

"36.—(1) The trader must not begin the supply of a service before the end of the cancellation period provided for in regulation 30(1) unless the consumer—
(a) has made an express request, and
(b) in the case of an off-premises contract, has made the request on a durable medium".

As you are making bespoke goods to order, you are providing both goods and a service. Therefore, once you receive the order, it is open to you to either:

1. Not begin work for 14 days, until the cancellation period has expired, or
2. Send them an email along the following lines: "Please note that you are entitled to cancel this agreement without notice within 14 days.If you wish me to begin work immediately, as opposed to waiting until the regulatory 14 day period has expired, you must copy and paste the text below into an email, and send it to me by email, by return: “I hereby give my express consent to work beginning immediately. I acknowledge that in doing so I am waiving the right to cancel this agreement within 14 days.” If you are not able to email me your agreement to waive your right to cancel, I will of course provide the work that we have agreed but will not commence this work until the fourteen day cancellation period has expired".

Once they have accepted that they are waiving their right to cancel, and have instructed you to begin immediately, if they then subsequently cancel during the 14 day cancellation period, they are bound to pay you:

• The full purchase price if you have completed the work (S36.2);
• A pro-rata sum, proportionate to the amount of work done, if you have not finished the work. (S36.4)

There are a couple of other things you need to do to ensure that it's binding, but those depend upon the exact means by which you contract with your customers. Note also that this does not need to go into your contract. The authority is regulatory, not contractual, and therefore carries more weight.

This will cover your back, but more importantly, as the regulations intend, it will more likely have the effect of preventing such situations happening in the first place.

If you would like some standard text to be drafted, tailored to your contractual process, drop me a PM and I'd be happy to help.

Dean

PS: I note your reference to the 2000 regs. These supersede those.

 

[paulears]

If your customer orders a 'bespoke' product, make sure that the word is included in the product description when you send them paperwork, or receipts, or any communication. You could also introduce a question or two into the process. Ask a question.

We're about to commence work building your bespoke chesterfield settee. Could you please confirm if you would like pinned or stapled fastenings on the underside - we recommend pinned for long lifespan?

Something you really don't need to know, but by the customer making their choice, they're also acknowledging the bespoke nature of the transaction. In addition you are telling them you are about to start making it, giving them the chance to change their mind before you waste your time and money. If they reply saying staples, or that they will go with your recommendation, I cannot see any judge being convinced they didn't know it was a bespoke product.

The comment on computers was interesting. I was of the understanding that if you order in specific components to build a customised item, that product becomes unique, and again, bespoke. I can see that using components you already have on the shelf might be different, but ordering in the bits you need would again generate a paper trail to support your case.