Most of us have noticed recently the absence of some of our favourite products at the supermarket. The most likely culprit? Congested ports, supply chain disruptions and staff shortages across all sectors as staff are increasingly either sick or self-isolating. The Omicron outbreak has also created a surge in demand for online orders. And while we have come to expect these types of shipping delays, not all of us are willing to accept them.
Under the Consumer Guarantees Act 1993 (section 5A), the Fair Trading Act 1986 (section 21), and the Contract and Commercial Law Act 2017 (section 160); Sellers must deliver goods to the Consumer within the period specified, or if no period is specified, then within a reasonable period. If goods are not delivered by the specified date or within a reasonable period of time, Consumers may reject the goods, and either demand a refund or claim damages for any reasonably foreseeable consequential loss the Consumer has suffered. The damages claimable by a Consumer could be for instance, the cost of procuring alternative goods for a special event, or a Consumers own commercial purposes.
What then is a “reasonable period of time”? This is case specific and will depend on factors such as the nature of goods being purchased; the usual timeframe for delivery; the reason for the delay and whether it was in the Seller’s control. For perishable items such as fresh produce, it would be unreasonable for the delivery period to exceed its shelf-life. Periods of force majeure may also be taken into account such as strikes and lockouts, staff shortages, changes to health and safety guidelines due to pandemic, and delays due to war or civil unrest in regions from which goods are supplied or transiting. It is up to the Seller to prove they delivered the goods within a reasonable time having regard to any interruptions to the normal course of business. However, a delay may not be reasonable where the Seller’s own acts or omissions contributed to the delay such as by failing to place the order and arrange delivery in a timely fashion.
In the absence of any specified timeframe for delivery, provided the shipping delays are reasonable in the circumstances, the Consumer must accept those delays.
If you have specified a delivery timeframe, and you expect to exceed that timeframe, the following may assist:
- Notify Consumers prior to purchase that delays could be expected and why;
- Update your website and Terms of Trade to be clear that you are not bound to any specified time of delivery. You could also expressly contract out of any liability for shipping delays which are outside of your reasonable control such as third-party delays and Force Majeure, however section 43 of the Consumer Guarantees Act 1993 only permits you to contract out of the Act where both parties are in trade.
- Notify customers of delays as they arise and maintain communication. This may reduce the number of customer complaints your staff must handle in order to focus on shipping and processing. An informed customer may then mitigate their risk of consequential loss. Arguably, a customer who does not respond to a notice of delay, could be deemed to have accept it.
By updating your website and terms of trade as above, and replacing specific delivery timeframes with prior notice that longer than normal delays could be expected, you may be less likely to incur liability as a result of shipping delays during the pandemic and beyond.