Q: I run a successful business that sells love dolls. However, a dispute has arisen with my UK manufacturer as a number of the dolls keep malfunctioning and I have had several customers return the products for full refunds.
When I reported the issues to the manufacturer and asked for a refund they told me that their Terms and Conditions state that, once I have signed their delivery sheet, I am not entitled to a refund under any circumstances. I have never seen these terms and conditions and have never been told about them.
I do have my own T&Cs which state that, in the event of the products being defective, the seller will provide me with a full refund. These terms were attached to the original contract of sale that we both signed and are clearly mentioned in the contract itself. Which set of T&Cs apply?
A: This is a more common situation than you might think! Recent case law indicates that Courts are more likely to favour the party who made their terms and conditions known to the other in the clearest way.
Where two parties allege that their terms and conditions apply, the Court will, amongst other things, consider whether or not the seller’s terms and conditions were reasonably brought to the attention of the buyer. If this is the case, the seller’s terms and conditions will usually apply. If not, the buyer’s may apply. The Court could also look at previous dealings between the parties to help it decide.
It seems that, on the surface, you do have a very good argument to say that your terms and conditions applied and not those of the manufacturer. However, you should seek more in depth legal advice, but do ensure the lawyer that you see has expertise in this particular area of law.
(Published 20.11.2017)