Out-Law / Your Daily Need-To-Know

Bespoke goods consumer rights require retailer review, say experts

Out-Law News | 07 Nov 2022 | 2:24 pm | 2 min. read

Online retailers have been urged carefully to review whether they can rely on exemptions to UK consumer rights laws that apply to bespoke goods.

Under UK consumer law, retailers that sell goods online generally need to provide a 14-day ‘cooling off’ period to consumers after concluding a sale, during which time the consumers can exercise a right to return the goods and receive a refund. Notice of the cooling off period and the associated rights of return and refund need to be shared with the consumer in pre-contractual information.

The cooling off period does not need to be provided by online retailers to consumers in relation to the distance selling of bespoke goods. However, Samantha Livesey and Felicity Parsons of Pinsent Masons warned that some online retailers may incorrectly believe that they sell goods that qualify as bespoke when in fact they do not.

“Many traditional bricks-and-mortar retailers are exploring alternative sales channels online and looking at ways of building customisation options into their online sales journey so consumers can buy these products online and are not restricted to in-store purchasing,” Livesey said. “Because of the elements of customisation, retailers are seeking to apply the bespoke product exemption to the cooling off period cancellation rights.”

“To fall within the cooling off period exemption, a product needs to be so specific to a particular customer’s needs there is no market for it once the customer has cancelled the contract,” she said. “This is something that needs to be determined on a case-by-case basis. There has been limited case law in this area, so determining whether products would be considered bespoke is a grey area.”

The UK government previously issued limited guidance that cited the example of football shirts bearing someone’s name on the back as an example of a product that would be likely to constitute personalised items to which cancellation rights would not apply.

That same guidance, however, suggested that retailers that allow consumers to select options, like colour or fabrics in the context of furniture, from a standard range will not be said to be offering bespoke goods for sale for the purposes of UK consumer law. Retailers that accommodate consumer requests beyond those offered in the standard range, like sourcing a special finish from a trader, are more likely to be providing bespoke goods, according to that guidance.

Separate guidance issued by the European Commission late last year, while not binding in the UK following Brexit, suggests that the concept of personalised products should be construed narrowly. One example it provided, which it said would not qualify as sufficiently bespoke, was enabling customers to choose a car with additional equipment selected from the manufacturer’s catalogue.

Parsons said: “Where consumers should have been provided with cancellation rights during a cooling off period and have not been notified of their rights, the right to cancellation can be exercised beyond the 14-day period – potentially up to 12 months. Given this, and whether or not a product is sufficiently customised to be considered bespoke is a somewhat grey area, we would advise retailers to consider whether they should provide customers with and notify customers of a right to cancel in their distance contracts.”

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