The country is buzzing, Harry Kane is scoring and the product that is flying off your shelves, be it a 4k TV or a replica shirt, hasn’t been delivered to your shop!
This is a problem many suppliers and retailers face over the course of the tournament, often caused by a high volume of orders, coupled with suspicious staff absences and both suppliers and third party couriers letting you down.
What happens when your supplier fails to score for you in the ninetieth minute? What rights do your customers have when the delivery in the final third goes wrong?
In consumer contracts, unless the trader and buyer have agreed otherwise, the Consumer Rights Act implies a term that the goods will be delivered without undue delay and, in any event, within 30 days of the date the contract was made.
If the delivery is late, and the consumer told the trader that delivery by the agreed time was essential, then the customer has the right to end the contract and obtain a refund.
The consumer can also claim a refund, if, after the first delay, the trader fails to deliver within a subsequent period specified by the consumer.
The consumer may have additional rights to compensation depending on the circumstances. If the new 4K TV did not arrive in time to watch England in the final (we can hope!), the customer might, in exceptional cases, have a claim for loss of amenity or mental distress.
Even if the consumer doesn’t end the contract, they may be entitled to compensation. If they had to drive out of their way to collect the TV, they may be entitled to their petrol costs or a claim for loss of earnings if they had to take a day off work for a second delivery attempt.
The Sale of Goods Act, which governs business-to-business contracts merely provides that, without a specific provision about the date for delivery, the seller is bound to deliver the goods “within a reasonable time”. The general rule is that the time for performance of obligations under a commercial contract is of the essence, so that late delivery would entitle the buyer to terminate the contract and claim damages.
How such damages will be measured will depend on the circumstances, and the customer will be expected to mitigate their loss caused by the delivery delay or failure. However, a claim might include the extra cost incurred by a customer who has to purchase a batch of inflatable Harry Kanes at the last minute from an alternative supplier if their planned order fails to arrive in time.
Businesses should be careful to agree realistic time frames for delivery with customers, particularly to avoid being caught by the default statutory provisions about time for delivery.
In business-to-business contracts, sellers should specifically provide that estimated delivery dates will not be of the essence of the contract. Traders should also think about their terms with third party mail providers and couriers. Would these enable the trader to claim compensation against its delivery company if their failure to deliver on time led to a claim by the customer against the trader?