Unfortunately for dealers, the guidance clearly favours the
consumer.
The 50-page compliance note on "Cars and other vehicles sold by
distance means" applies to the Distance Selling Regulations, which
came into force in October 2000, giving new rights to consumers in
home shopping – including purchases made over the web, by mail
order or by telephone.
Some dealers will be disappointed to learn from the guidance
that consumers really can drive their car for a week, return it for
no reason, and get a refund, at least in the
OFT
's
opinion; but to most, that won't be a surprise.
The benefit for others will be in getting clarification of what
the
OFT
considers to be acceptable consumer behaviour
during the Regulations' cancellation period of seven working days.
The downside for on-line dealers is that while there is greater
clarity, ambiguities have largely been resolved in favour of the
consumer.
"A car is an expensive purchase," said Penny Boys,
OFT
Executive Director. "It is important that people
who buy one by distance means get the full benefit of the
additional protection of the [Distance Selling Regulations]. This
guidance will help ensure that they do."
The Regulations apply to almost all types of distance shopping
except business to business contracts, certain financial services,
sales concluded at an auction, contracts for the sale of land, and
sales by vending machine. For some businesses, including on-line
car dealers, it was hard to interpret certain parts the rules.
There are several pages of guidance on cancellation rights.
Buying a new car, the customer doesn't choose a make and model; he
also picks a colour and extras like the sunroof, CD player and
satellite navigation. Does this mean that the car is made to the
customer's specification and cannot be returned? No, says the
OFT
, not when the customer is just picking from a list
of optional extras. Truly bespoke requires something more
imaginative.
Even if the car has been registered to the buyer, it can be
returned. After all, registration documents can be transferred,
says the
OFT
.
The rules talk of an exception for goods that deteriorate
quickly; but the
OFT
says this is not an escape clause
for car dealers. It applies only to physical deterioration of
goods, not a loss of financial value just because a car is sold and
registered to a particular owner.
Perhaps the biggest concern surrounds the responsibility on
consumers exercising their cancellation rights to take reasonable
care of the car whilst it is in their possession. Does this mean a
consumer can run up thousands of miles on the clock, provided he
does no damage? Apparently not.
The guidance note recognises that a test drive is only fair and
adds: "We are unlikely to object to suppliers pointing out to the
consumer what they consider to be reasonable care – for instance by
suggesting an acceptable mileage limit."
If consumers exceed this mileage, it does not follow
automatically that they failed to take reasonable care. That, the
OFT
accepts, is for a court to decide. Still, in the
absence of other court decisions, a judge is likely to be
influenced by
OFT
guidance, so mileage limits seem an
obvious measure for on-line car dealers.
"A small amount of wear and tear would not mean the consumer had
not taken reasonable care," the guidance adds. Splash marks that
can be washed off and slight wear to tyre treads are reasonable, it
suggests. Dents would suggest a failure to take reasonable care,
but again, this depends on each case. "Failure to take reasonable
care does take away a consumer's right to cancel," says the
OFT
, "but would mean that you had a claim against the
consumer for the loss in valure of the goods that this had
caused."
It's not just a note about cancellation rights. There is
guidance, for example, on the obligation to display the price of
the vehicle including all taxes, and how to provide pricing
information where the web site operates as a middle-man, buying
from an overseas supplier.
