Internet take-away
Vanessa Barnett, an Internet and e-business solicitor at Berwin Leighton Paisner, identifies a few problems to avoid when moving a take-away delivery business online.
The problem
A food delivery business decides to go online rather than rely solely on paper menus posted through letter boxes. With the new online images, the service takes off, but then several complaints are received. First, when customers have ordered online, nothing has been delivered. Second, while food is in transit some customers have phoned up and cancelled their order. Where does the business stand legally?
The law
The question of whether customers who have not received their deliveries have a legally enforceable complaint depends on whether a binding contract exists between them and the business. This depends on contract law, and any terms and conditions on the Web site become a binding contract. If there are no terms and conditions on the site, ordinary contract law will determine the company's position.
The general contract rule is that a contract is concluded when an "offer" is "accepted". If the site is offering to sell the food at a certain price and all a customer needs to do is e-mail an order, the business may be bound to deliver food to all those who order on the site. This is because the site gives customers the message that they can conclude a contract if they e-mail in and "accept" the offer to deliver food.
If the site is more like an online menu, where a customer must first get confirmation to know the order has been accepted, the business is unlikely to be bound to deliver the food.
Legally, the site will be considered only "an invitation to treat", where the customer must make the "offer" to buy and the business can choose to "accept" the offer with a confirmation e-mail. It is not possible to "accept" an "invitation to treat" to form a binding contract.
Customers are right in thinking that they have a right to cancel online purchases. This is given to them under the Consumer Protection (Distance Selling) Regulations 2000. However, these regulations do not apply to "goods made to the consumer's specifications" or those which are "likely to deteriorate or expire rapidly", like take-away food. The business can, therefore, continue to deliver the food and charge the customer's card.
Expert advice
The business needs to review its customer service, and it should make sure the contractual position is very clear on the site. In particular, it should tell potential customers that orders are accepted only when they are sent a confirmation e-mail, and that all deliveries are subject to availability. This offers a choice to the business about whether or not to "accept" an order. It also offers protection for any occasion when there are no staff or resources available to make the delivery.
However, these contractual terms must be brought to the customer's attention, and sufficient steps must be taken to do this. The terms must be accessible from each Web page - for instance by using a prominent "delivery terms" link at the bottom of each page.
If sufficient steps are not taken to bring the delivery terms to customers' attention, there is a risk of a customer being able to sue for damages for non-delivery.
Beware!
Publishing delivery conditions on a Web site is a tool to manage risk and customer expectations - get it wrong and you could not only lose customers, but also land yourself in court for breach of contract.
Check list
Put delivery terms on the site to spell out to customers:
- Who owns and runs the take-away service, to avoid any confusion about whom the customer is dealing with.
- When and how the contract is made, ie, whether the contract is concluded when the customer places the order or when the take-away confirms the order (for instance by e-mail).
- That delivery times are only estimates (in case of heavy traffic).
- That orders cannot be cancelled - that way it will not come as a nasty shock.
Contacts
Berwin Leighton Paisner
020 7760 1000
vanessa.barnett@berwinleightonpaisner.com
