What I Ordered vs What I Got; Are There Any Remedies Available To An Unsuspecting Buyer In An e-Commerce Transaction? By Chiamaka D. Ogbonna

 

 

INTRODUCTION

In December last year, Folake decided to have a detty December after a tedious work year, and in order to achieve this, she needed to buy the best of hairs and outfits. Folake went on Instagram and found a vendor who seemed genuine and had the picture-perfect hairs for sale. She went through the page and settled for a ‘’bone straight’’ which was described on the vendor’s page as: “18 inches lush, soft, no tangling, no shedding, super double drawn luxurious bone straight with lifetime guarantee. What you see is what you get” Seeing this, Folake hurriedly made the payment of N190,000 (one hundred and ninety thousand naira) to the vendor. In the same vein, Folake ordered for 2 dresses and a jumpsuit from a US e-commerce store that advertised 7 days fast shipping to Nigeria. Upon delivery of the hair, there was certainly nothing lush, soft or straight about it. It was a complete contrast of what she saw online. At that point, she realized she had finally joined the bandwagon of the trending list of victims of online shopping with the much resonating phrase of; “what I ordered vs what I got”. She was confused on her next line of action as she had spent a ‘whooping’ sum in purchasing the item. I believe Folake’s experience readily brings back memories of a personal experience for the majority of the readers who had at some point purchased items off online shops or perhaps know someone who has been in such a situation. This development raises a number of salient questions about the diverse implications of these transactions and redress options available to the growing list of victims. In the succeeding paragraphs, I will raise and answer some of these questions and if I have left any questions out, you can share them via email.

1. Is there a contract between a vendor and a purchaser in an e-commerce transaction?
It is primary knowledge that there is generally no specific form in which a contract may be entered into. The court succinctly puts it this way: “It is elementary law that a contract may be demonstrated by the conduct of the parties, as well as by their words, deeds or by the documents that have passed between them”.i

Thus, a contract may be entered into either orally, in writing or by conduct. In this sense, a contract may also be brought into existence electronically by online communications, a process which is called an online contract. Similarly, there exists a contract for the sale of goods between a vendor and a purchaser. This contract of sale of goods is a contract whereby the seller transfers the property in the goods to the buyer for a money consideration called the price.ii In light of this, it is important to note that the display of goods online does not automatically create a contract between the vendor and a browsing online shopper, rather, it is a mere invitation to treat from the vendor. An offer is established where the shopper communicates his desire to purchase the goods displayed. For example, an e-commerce site could advertise items or services for sale, and the consumer fills out and submits an order form that appears on the website. Upon receipt of the order (offer), he has the choice whether to accept or reject (cancel) the order. A contract is formed when the seller accepts the order (offer)iii

In the case of social media transactions which do not require the submission of an order form, the display of goods on the vendors page constitutes an ‘invitation’ to treat. The indication of interest to the vendor through the means of direct messaging (DM), phone call or writing in the comment section of a post constitutes an ‘offer’, which the seller may accept or reject, while the payment of the price for the goods or services is the consideration. The same rules that apply in cases of display of goods for sale equally apply. This means that the display of goods on websites constitutes an invitation to treat and the shopper’s decision to act on same, simpliciter, cannot constitute a valid contract. In BFI Group Corp. v. B.P.E., the Supreme Court clearly stated that: An offer must be distinguished from an invitation to treat. Invitation to treat is the first step in negotiations between the parties to a contract. It may or may not lead to a definite offer being made by one of the parties to the negotiation. An invitation to treat is not an offer that can be accepted to lead to an agreement or contract” The UNCITRAL model on ecommerce prescribes the global standard for the validity of contracts, matters of evidence, electronic signatures, payment system and other e-commerce law applicable to online business transactions. Therefore, it is right to conclude that once the above elements of contract are present, the law will recognise a contract between a vendor and a purchaser in an e-commerce transaction.

2. Does the law provide any rights/remedies to an aggrieved purchaser in this instance?
Having established the fact that there exists a contract between a vendor and purchaser in an e-commerce transaction, it becomes pertinent to ascertain the existence and extent of rights that are available for online consumers under the Nigerian law. It is a trite principle of law that Ubi jus ibi remedium viii, therefore the existence of these rights will further cement the enforcement of a remedy. Although, in Nigeria, the consumer protection laws are not as robust as we would hope and expect them to be. It will not be wrong to say that there is virtually no exact statutory legal instrument that currently protects the consumer from the harsh burden which the extremely lopsided standard form contracts may place on them. viii The Sale of Goods Act provides for conditions that help unsuspecting buyers recover their money and reject goods which are not in line with their purchase order. Section 34 of the Sale of Goods Act imports an implied condition that the goods sold by description must correspond with the goods delivered and where the sale is by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.

Similarly, where the goods have not been examined, a buyer is not deemed to have actually accepted the product unless and until he has examined the goods to ensure they are in conformity with what was ordered. Therefore, relying on the extant provisions of the Sale of Goods Act, Folake has a right to reject the goods and ask for a refund of her money immediately she discovered that the goods delivered do not conform to what was agreed between the parties. In the same vein, the Federal Competition and Consumers Protection Act provides that a consumer has the right to goods that are suitable for the purpose for which they are generally intended, such goods must also be of good quality and free from any defects whatsoever. The goods must also comply with any applicable standards set by the industry regulators.x

Section 122 of the Act provides that in addition to the consumer’s right to return unsafe or defective goods under any law or enactment, the consumer may return goods to the supplier and receive a full refund of any consideration paid for those goods, if the supplier has delivered; (a) goods intended to satisfy a particular purpose communicated to the supplier and within a reasonable time after delivery to the consumer, the goods have been found to be unsuitable for that particular purpose; or (b) goods that the consumer did not have an opportunity to examine before delivery, and the consumer has rejected delivery of the goods within a reasonable time after delivery to the consumer for the reason that the goods do not correspond with description, sample or that they are not of the type and quality reasonably contemplated in the sales agreement.

Thus, a consumer whose rights have been violated by anyone can file a complaint with the Federal Competition and Consumer Protection Commission (FCCPC) or refer the situation to the undertaking for redress. In addition, the consumer may seek relief in a court of competent jurisdiction. The Commission has the power to investigate complaints and issue appropriate orders. The Commission can register its orders in the Court as consent orders of the Court. Also, where a consumer has suffered injury resulting from the purchase of damaged, defective or goods not fit for the purpose in which it was intended, the Act provides that the consumer files a complaint to the FCCPC. xii

3. Are failed e-commerce transactions rights enforceable?
The valid elements of a contract being offer, acceptance, consideration and an intention to create legal relations must subsist in an online contract for it to be valid. Although there is no specific legislation that provides for the enforcement of online/electronic contracts, aggrieved parties can rely on the provisions of section 84 of the Evidence Act 2011 on the admissibility of electronic evidence to prove validity of contracts entered into electronically. Going back to Folake, matters became worse when she raised her concerns with the IG vendor and the vendor claimed there was a “no refund, no exchange policy” on the business page. This leads us to the next question:

4. “No Refund”, “No Exchange” policy, what can I do?
The remedies as earlier discussed, avail an aggrieved purchaser, irrespective of the unfavourable refund policy of the seller. The Federal Competition and Consumer Protection Act provides in section 127 that an undertaking shall not supply, offer to supply, market or negotiate goods and services to consumers in a manner and/or for prices that are unfair, unreasonable and unjust. It further states that there shall be no undertaking that seeks or requires the Consumer to waive its rights or the consumer assuming any obligation in a manner that is unfair or unjust. Section 128 also provides that any notice which seeks to limit in any way the risks or liabilities of a supplier of goods or services, constitute an assumption of risk by the consumer, impose an obligation on the consumer to indemnify the supplier or is an acknowledgment of fact by the consumer must be brought to the attention of the consumer in a conspicuous manner and form that a reasonable man will not miss.

Therefore, a no refund no exchange policy is void ab initio, this is because it goes against the provisions of the FCCPA and seeks to restrict the rights of a Consumer. A Customer who is faced with this situation has a right to seek redress under the law.

5. Is there a remedy for the purchaser where the transaction is across borders?
Although e-commerce transactions started off locally and with parties in the same location, overtime, it has expanded to include parties across borders. This advent, albeit necessary for the evolution of the world, has raised major challenges with respect to the applicable laws in disputes and cross border jurisdiction. Purchases made over the Internet typically involve businesses and consumers from different jurisdictions, each of which may have different regulations governing key aspects of e-commerce, may lack specific frameworks for the sale and acquisition of goods and services online, and/or may be ill-equipped to deal with untrustworthy traders in the context of e-commerce, whether at the national or international level.

According to UNCTAD xiii, cross-border e-commerce presents the following particular challenges for consumers:
(a) Dealing with unfamiliar brands in an unfamiliar language
(b) Lack of certainty in receiving a product as described or ordered
(c) Hidden costs, including those related to customs duties and currency conversion, as well as shipping or delivery
(d) Conformity of products to local standards
(e) Lack of clarity on protections afforded by a seller’s jurisdiction

There may also be instances, where purchases are made via a third-party channel, usually an e-commerce website. xiv Although, the contract of sale ordinarily is between the vendor and the purchaser, there are instances where there is a third party that acts as a link or a chain of communication between the parties.

In the case of Bolger v. Amazon xv, the major issue for determination was whether “Amazon being an ‘online marketplace’ is strictly liable for defective products offered on its website by third-party sellers”. The court held that; “Summarily adjudicating causes of action for strict products liability in favor of Amazon was an error because the policy considerations underlying the doctrine of strict liability indicated that the doctrine could apply to a company alleged to be a direct link in the chain of distribution, able to exert pressure on its third-party sellers to enhance safety and to adjust the cost of liability between itself and its third-party sellers”.

These e-commerce portals that are aware of the challenges that may arise from online purchases, have painstakingly created ways in which they can protect themselves from liability of any kind. One of such ways is the provision of a review box, where buyers can view all written feedback from previous buyers and the sellers’ reply, so as to judge the item’s quality or the seller’s service attitude.

However, just like the case of Bolger v. Amazon xvi, the consumer recognizes the e-commerce website as the only ascertainable, reasonable party to lay complaints against and as such liability for damaged goods will most often be imposed on the online marketplace. Thus, it is imperative for these e-commerce websites to ensure the quality of products being advertised and sold on their platforms.

CONCLUSION AND RECOMMENDATION

Technological evolution has created new legal and regulatory hurdles that transcend the immediate contemplation of the existing redress systems and mechanisms. Regulations that have typically evolved at a moderate pace must now keep up with technology’s unrelenting speed. One of such areas of rapid progress is e-commerce. Online consumers are growing increasingly vulnerable to misleading and deceptive conduct. Consumers face many challenges while processing their choice to purchase, the most common of which include unfair contract terms, online payment security and data protection and privacy, including non-monetary transactions.

Another common challenge consumers face in developing countries (Nigeria inclusive) is the difficulty of establishing the identity and physical location of a provider of online products. It is therefore imperative for consumers to exercise due diligence when patronizing e-vendors, not the least of which is to ensure that they restrict themselves to businesses duly registered under the extant laws. Conclusively, there are lessons to be learnt from countries like Malaysia, where e-consumers have access to a quick and cost-effective way of resolving disputes.

Consumers who are unsatisfied with online transactions can submit a claim with the Consumer Claims Tribunal (TCC). It is free to file a complaint with the TCC, and parties are free to resolve their issues on their own. If there is proof of service on the respondent, the TCC can hear and decide the complaint ex parte. Similarly, in Brazil, the National Consumer Secretariat established an online mediation mechanism in 2014, a public service that allows customers and suppliers to communicate directly online to resolve complaints.

REFERENCE:
i. UBN V. Ogunsuji
ii. Section 2, Sale of Goods Act (1893)
iii. E. S. Perdue, “Creating Contracts Online” in T. J. Smedinghoff (ed.) Online
Law, (New York: Addison-Wesley Developers Press, 1996), p. 79
iv See Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern Ltd) [1953] 1 QB 401; Fisher v. Bell [1960]
3 All ER 731, (1961) QB 394 and Sencho Lopez v. Fedor Food Corp. (1961)211 NYS (2nd) 953 (New York) US
v. UN Convention on the Use of Electronic Communications in International Contracts 2005, Art. 11
vi LN-e-LR/2012/18 (SC)
vii It is a Latin maxim which means that where there is a wrong, there is a remedy. If any wrong is committed then the law
provides a remedy for that.
viii https://lawpadi.com/rights-shopping-online-nigeria/ accessed on March 3, 2022
ix Section 34(1) of Sale of Goods Act, (1893)
x Section 131 of the Federal Competition and Consumer Protection Act, 2018 Cap P41 LFN 2004
xi Federal Competition and Consumer Protection Act
xii Federal Competition and Consumer Protection Commission
xiii United Nations Conference on Trade and Development
xiv this begs the question of whether or not the e-commerce website can exclude liability for misrepresentation of goods
on their website by vendors?
xv LLC – 53 Cal. App. 5th 431, 267 Cal. Rptr. 3d 601 (2020)
xvi ibid

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