# Commercial/Consumer Sales Policy



## filthynines (May 2, 2016)

edit: Somehow the top paragraph of this disappeared. I had written that I didn't know where else to write this; it's just fallen here because I was looking at roasters at the time. Perhaps a mod might see fit to move it elsewhere?

*Disclaimer: These are my views based upon my knowledge and understanding of the law as it stands today. Do not rely solely on this post: it is not intended to be legal advice, and you should seek specialist advice before taking any action against any party.*

I was checking out BB's website for the Dalian Amazon roaster. https://www.bellabarista.co.uk/bella-barista-dalian-amazon-1-kg-roaster-model-dl-a721-sbb-pre-order-deposit-save-200.html I saw something I've seen a few times:



> This is sold as a commercial product Where a product is advertised as TRADE or COMMERCIAL it is considered that the purchaser has a certain knowledge and engages in the trade appropriate to the use of the machine or equipment In this case the warranty is for 1 year and is a back to base parts only warranty .


In short, based upon my study and practical knowledge in this area of law, I don't think what BB "considers" to be true is necessarily reflected in law.

The Consumer Rights Act 2015 - which provides the statutory rights for all consumer purchases post-October 2015 - defines a consumer as "an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession." (Section 2(3) of the 2015 Act)

It is therefore that piece of legislation that defines whether a transaction is commercial in nature or not, and it's for the trader to prove that somebody claiming to act as a consumer is not (Section 2(4) of the 2015 Act). Furthermore, a trader cannot contract out of the remedies available to consumers. (Section 31)

In practice this means if you've bought equipment such as this solely to roast your own beans to enjoy personally or by giving to family and friends, then you're a consumer. If you accept contributions from (sell to) friends then you might be in murky waters but could still potentially argue you're a consumer. Obviously if you're roasting for general sale you're undoubtedly a commercial enterprise. This does have relevance even for a top retailer like BB: I have my doubts that they can refuse to offer you the remedies available under the other sections of the Act if the machine is faulty within the first six months (Section 19(14)) and maybe for a reasonable period after that. It is possible that they would be required to provide the labour as well as the parts they offer. This is not intended to be a criticism aimed solely at BB: it just so happens that it was their website that prompted my train of thought.

This is also likely to be of relevance to those of you who have bought espresso machines that would ordinarily be classed as commercial machines. Just because they're sold as "commercial" does not necessarily mean that the transaction is a commercial transaction.

Feel free to shoot down my analysis. I would be interested if this has actually caused an issue for anybody.


----------



## 4085 (Nov 23, 2012)

@filthynines I think, if you look at Financial Services, then there are 2 classifications of client, Retail and Professional. Retail clients are the norm where it is assumed you are relying upon advice to help you and therefore you have full protection in case things go wrong. A Professional or sophisticated investor is willing sign away the protection afforded to him to allow him to make his own decisions, but if it goes tits up then he is on his own.

BB are saying, that this product is aimed at the Trade and therefore usual consumer protection does not apply. Assuming it is going to work for its living, then compared to a normal home roaster with a 250 gm capacity it is going to cover a lot more ground, and therefore work harder, wear out faster. They are saying if you buy a machine designed for the Trade and decide to stick it in your outhouse, then you do so without full consumer protection.


----------



## filthynines (May 2, 2016)

@dfk41 That's an interesting perspective. I can see how that is one of the intentions of the text: to say "don't just plug this in on your kitchen work surface like you would a toaster". If you did that and, for example, it blew the electrics in your house because you didn't follow installation instructions, then no court in the land would make the retailer cough up - that's a user error.

But they can't remove consumer protection in that way; whether in full or in part. If I today purchase the Amazon roaster (notwithstanding the fact that it isn't in stock...) and I follow the instructions to the letter to install it in a purpose-built building with its own power supply and circuit, and then I proceed to roast myself 500g per month for my own personal use, and then the heating element burned out in three months, I strongly believe that:

a) I would be held to be a consumer, pursuant to the Consumer Rights Act 2015;

b) That the retailer would have a very difficult job proving that I wasn't;

c) That I would be able to benefit from all of the rights provided under the 2015 Act; and

d) BB (in this case) would be obliged to repair or replace the item, depending on which option I chose. Again, pursuant to the Consumer Rights Act 2015.


----------



## AndyDClements (Aug 29, 2016)

I'm with @dfk41.

The Consumer Rights Act and its definition of "consumer" isn't always going to be the only consideration, for example if I were a customer of Macro, I'd have signed-up to their contract (as part of applying for a card) that I am doing so as a Trade customer, not a consumer. Ditto for the Halfords trade discount card.

I'm not saying that a company's terms of business are (or even can) over-rule UK legislation, just that any definitive judgement would take multiple factors into account. So if the thing went wrong and it turned into a legal case, chances are the judgement would take into account whether a "normal" consumer would purchase that item, if that item is a commercial coffee roaster then ... well we can make up our own minds as to whether that's a thing for a "normal" person to have.


----------



## 4085 (Nov 23, 2012)

@filthynines

my counterargument would simply be that the product is a commercial roaster aimed at the trade. No one can stop someone from buying one but if you do buy one, you either buy it as a piece of trade equipment or for your house, as a piece of trade equipment. It does not suddenly become retail equipment because you want to stick it in your garage!


----------



## filthynines (May 2, 2016)

I'm sticking by my guns on this one. This discussion is hampered slightly because reported cases on CRA 2015 are few and far between.

The trade card analogies are interesting. In my view that provides evidence that somebody is acting other than as a consumer. If I tried to argue that I'd used the trade card as a consumer then I might run into difficulty in persuading a court that I wasn't. Of course, there'd likely be an application form to relate back to which showed certain characteristics pointing to my trader status.

Equally, BB's advert "this is a commercial product" (or whatever) would be evidence pointing to the assertion that a buyer acted other than as a consumer, but - going back to my example above - I'd provide evidence that I was a 500g-a-month kind of guy who was just a consumer. Then the court would have to balance all of the evidence, because whether somebody is a "consumer" is a question of law.


----------



## filthynines (May 2, 2016)

@dfk41 - Our posts crossed over but I think I'd just repeat the point about whether or not somebody is a consumer is a matter of law. I'd say the reverse of what you are saying is true: just because a trader says this is a commercial product doesn't mean that they're not a consumer. A person asserting rights under the relevant Act only has to show that they are acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession.


----------



## filthynines (May 2, 2016)

To me it's an interesting discussion. Much like a car, if I were to buy a roaster like the Amazon for home use then it would be very much in the realm of the purchases that I would take to court if necessary to assert my rights. It's definitely of sufficient value to me to warrant that, and I wouldn't be surprised if others would take the same view.

Let's hope it doesn't happen to anybody. Again, I think this is a far more likely scenario where commercial coffee machines find their way into the home.


----------



## 4085 (Nov 23, 2012)

@filthynines

BB also have a large trade division selling catering equipment and the likes to trade customers. All they are doing, is saying, look, this product is on our website but it is aimed at the trade customer, so if you buy it there are the terms and conditions. I really fail to see what you are so hung up on, unless you had bought that roaster from them and it had broken down outside of the 12 month warranty an so you are trying it on!

Unless this is tested with a case, then we can all waffle on as much as we want all day. Believe me, if you bought one you would be signing documentation accepting their terms in which case you ain't got a leg to stand on


----------



## filthynines (May 2, 2016)

@dfk41 Your tone has taken a turn for the worse, in the way that is traditionally peculiar to you. I'm not hung up on anything: I happen to be a lawyer with keen interest in this area. I also happen to be interested in coffee. The two things have merged in a way that is interesting to me.

Your "if you bought one you would be signing documentation accepting their terms in which case you ain't got a leg to stand on" is nonsense: you specifically cannot contract out of your rights under the Consumer Rights Act 2015 (Section 31, as previously mentioned). So first a court would have to determine if I was a consumer; then if I was not then the contract would bite. If it said "By signing here you agree you are not a consumer and are not using it in a consumer context." It could give rise to a (strong) rebuttable presumption, but nothing more. A retailer would again need to prove that I was "an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession". Again, in a hypothetical scenario I would say "I roast 500g a month for myself and myself only. I know I signed that bit of paper, but really all I wanted was the kit." The likely outcome is unknown and would be fact-specific.


----------



## ashcroc (Oct 28, 2016)

filthynines said:


> @dfk41 Your tone has taken a turn for the worse, in the way that is traditionally peculiar to you. I'm not hung up on anything: I happen to be a lawyer with keen interest in this area. I also happen to be interested in coffee. The two things have merged in a way that is interesting to me.
> 
> Your "if you bought one you would be signing documentation accepting their terms in which case you ain't got a leg to stand on" is nonsense: you specifically cannot contract out of your rights under the Consumer Rights Act 2015 (Section 31, as previously mentioned). So first a court would have to determine if I was a consumer; then if I was not then the contract would bite. If it said "By signing here you agree you are not a consumer and are not using it in a consumer context." It could give rise to a (strong) rebuttable presumption, but nothing more. A retailer would again need to prove that I was "an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession". Again, in a hypothetical scenario I would say "I roast 500g a month for myself and myself only. I know I signed that bit of paper, but really all I wanted was the kit." The likely outcome is unknown and would be fact-specific.


Can we have some common law refences to back up your supositions please? Without them your stance carries just as much validity as dfk's.


----------



## filthynines (May 2, 2016)

No, ashcroc - consumer goods cases going to court are few and far between and always have been. In the two years since October 2015 very few seem to have been reported. There's a very good reason why a large proportion of pre-2015 cases were on the subject of cars: hardly seems worth it for a kettle. In any event we're not talking about common law remedies; we're talking about statutory rights.

It's simply not right to say that dfk's stance carries as much validity as mine. I am citing a statute, and he is merely saying what he believes to be true. One of his last statements is, in fact, directly contradicted by statute.

At the very least I have given myself the benefit of various caveats and qualifications on the statements I have made. That is done in the knowledge that there are no certainties in litigation.

edit

Having re-read your post I'll give a slightly different answer. If by suppositions you mean what the results would be in my hypothetical scenario then the answer is, of course, no. If you instead mean what tests a court would consider then I can give you a direct answer because it's there in the 2015 Act. Again, wouldn't be common law because it's not a common law remedy.


----------



## 4085 (Nov 23, 2012)

Here is a legal question for you then. What is the difference between the word unlawful and the word illegal?


----------



## filthynines (May 2, 2016)

Not something I've ever put my mind to. I could take a wild stab or I could Google it.


----------



## Batian (Oct 23, 2017)

filthynines said:


> Not something I've ever put my mind to. I could take a wild stab or I could Google it.


Take care, your reply may be illicit!


----------



## filthynines (May 2, 2016)

Batian said:


> Take care, your reply may be illicit!


You're right! I think I'd just go with the fact that one is a dead bird and one isn't and hope not to have to resort to the dangers of the internet!


----------



## Glenn (Jun 14, 2008)

Worth raising your concerns directly with Bella Barista - ask for Marko or Claudette, as they will be best placed to hear the concerns and take further action if deemed necessary


----------



## ashcroc (Oct 28, 2016)

filthynines said:


> No, ashcroc - consumer goods cases going to court are few and far between and always have been. In the two years since October 2015 very few seem to have been reported. There's a very good reason why a large proportion of pre-2015 cases were on the subject of cars: hardly seems worth it for a kettle. In any event we're not talking about common law remedies; we're talking about statutory rights.
> 
> It's simply not right to say that dfk's stance carries as much validity as mine. I am citing a statute, and he is merely saying what he believes to be true. One of his last statements is, in fact, directly contradicted by statute.
> 
> ...


What I mean is simple. What is written in law can differ greatly in how the courts interpret it from how it was intended by those writing it. Just look how sub three inch lock knives used to be legal every day carry until case law decided to treat them like fixed blade knives despite how the statute was worded or indead intended. Case law is king. It matters not if we're talking about a coffee machine or a car if it's covered by the same statute, the courts will look towards the same cases when deciding on a verdict.


----------



## 4085 (Nov 23, 2012)

Ok, I am not a lawyer which is obvious, but I do work in Financial Services. In FS, clients are classified either as Retail with full consumer protection, or Professional where as stated, they sign away all rights to protection although there is a process that has to be followed in order for a client to be certified as being Professional.

I think the point you are making, is that the BB website is on the whole aimed at retail customers so within that, it is not really advisable to start selling items aimed at the Professional Trade customer that cary different t & c's. And I agree, but, whether or not a disclaimer being signed is enough or not, would need to be tested.

I am assisting a case that is in with the Financial Ombudsman Service and without going into details, their argument is that the client signed away his rights on 9 occasions by signing instructions given to him by the adviser. The instructions basically said that the client was taking full responsibility for the sale and had received no advice or help from the IFA firm. FOS back this fact up saying on each occasion he read, digested then agreed to sign his rights away. I am going to win this case on a completely different point, and this is a million pound action. Point I am making, is if someone choses to buy this roaster and agrees to different terms to normal retail, or should I say the same terms as a Trade customer, then I cannot see how they would have any claim on anything that was different to that that they had agreed upon.


----------



## filthynines (May 2, 2016)

Yes and no, ashcroc. You clearly have some detailed knowledge so I won't try to teach you how to suck eggs, but the youth of the 2015 Act means that there are unknowns. However, in my view, the definition of a consumer is clear, and everything that runs from that should be capable of application based on an exercise of logic.

Dfk - I think we both accept that everything will turn on its facts, and the point you made was that hypothetical scenarios won't get us far. I agree. I also agree that the more any retailer burrows into the circumstances of the customer to establish use etc, the less likely the customer will be able to deny that use in the future. I would be more than happy to argue the point either way if so instructed, because there's merit to each side.

I objected to your suggestion that "if you bought one you would be signing documentation accepting their terms in which case you ain't got a leg to stand on", because that simply isn't correct in law.


----------



## ZappyAd (Jul 19, 2017)

dfk41 said:


> Ok, I am not a lawyer which is obvious, but I do work in Financial Services. In FS, clients are classified either as Retail with full consumer protection, or Professional where as stated, they sign away all rights to protection although there is a process that has to be followed in order for a client to be certified as being Professional.
> 
> I think the point you are making, is that the BB website is on the whole aimed at retail customers so within that, it is not really advisable to start selling items aimed at the Professional Trade customer that cary different t & c's. And I agree, but, whether or not a disclaimer being signed is enough or not, would need to be tested.
> 
> I am assisting a case that is in with the Financial Ombudsman Service and without going into details, their argument is that the client signed away his rights on 9 occasions by signing instructions given to him by the adviser. The instructions basically said that the client was taking full responsibility for the sale and had received no advice or help from the IFA firm. FOS back this fact up saying on each occasion he read, digested then agreed to sign his rights away. I am going to win this case on a completely different point, and this is a million pound action. Point I am making, is if someone choses to buy this roaster and agrees to different terms to normal retail, or should I say the same terms as a Trade customer, then I cannot see how they would have any claim on anything that was different to that that they had agreed upon.


I think that the classification of customers in Financial services is something specifically defined by the regulator (FSA or FCA these days?) in their rules and regulations handbook. It is there to protect 'civilians' from dodgy deals while still giving 'pros' the opportunity to sign away their protections and get their face ripped off every now and then. The point is that it is specifically related to financial services and so isn't applicable at all to buying goods as a consumer over t'internet. It is a totally different area handled by an entirely separate set of legislation.

If you are buying something from a trader (like BB) then as long as you aren't acting for a business I can't see how you are anything other than a consumer and so are going to be covered by the consumer rights act. I'm pretty sure that traders can't exempt themselves from the act and/or get you to waive your protections. If they don't feel like they can support your rights under the act then they can/should refuse to sell you something; but if they take your money then they are entering into a contract with you as a consumer and accepting your rights under the act.


----------

