The Checkout

The Nasty Fine Print of "Terms & Conditions"

I don't know about you, but when I shop online, I'm usually in such a rush that I rarely read the e-tailer's "terms and conditions." That's a mistake.

The latest edition of Consumer Reports (subscription required) explains why. Many e-tailers use their terms and conditions to trim many of the consumer protections we have taken for granted when dealing with a bricks-and-mortar store. For example, at a traditional store, there's usually an implied warranty that the product you buy will work properly and last a reasonable amount of time. But CR surveyed many e-tailers and found their terms and conditions revoke the implied warranties and say everything is being sold "as is." That means if it doesn't work, that's your problem, not the store's. The stores can absolve themselves of responsibilities in other ways as well. CR cites Target.com, which makes you assume the risk of loss or damage to merchandise when the shipping firm picks it up, not after it is delivered.

Other findings: Some sites don't accept returns of opened merchandise; some don't take returns of defective products. And if you return items that were shipped for free, you may be charged for the return, even if the item is defective. In some returns, that original "free shipping" may be deducted from your credit.

How can you protect yourself? First, know the business that you're dealing with. Don't buy online from any site that doesn't list the owner's name, address or phone number. And don't buy if there are lots of spelling errors on the site as well.

When you do buy online, use a credit card. That way, you can dispute any charges for items that arrive broken or aren't what you ordered. You can't do that with a debit card. Never pay with cash, money order or a wire transfer.

To be extra safe, consider buying big-ticket items in a store, not online.

Of course, it goes without saying that you should read the terms and conditions (T&C) as well. But that's not easy. Usually you have to order something and enter your shipping info and all your credit-card data before you can even find the T&C. By then, it's almost too late. You're already emotionally invested in the product. E-tailers need to make their T&C easily available--before the shopping begins.

By  |  April 11, 2006; 7:00 AM ET Consumer Tips
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Comments

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You want a real thrill just ShopNBC and get the shaft! Their electronics Do Not Work as Advertised on their dog and pony demonstation shows! Not only that the 30 return policy activates on delivery, Sooo, if you bought something for a gift, let's say buy in Nov for Christmas gift, a return is Not Allowed! But the return policy is stated on the Back of the receipt in the lightest blue ink that can barely be read in sunlight, Sooo, one is Not Aware of the policy until they find out the piece of electronic crap they bought does not work, now you have to pay for something you do not want. Stay Away you are much better off to go to Compusa, Bestbuy, or even ugh, Walmart than to shop at ShopNBC.

Posted by: R Vondork | April 11, 2006 9:59 AM

I thought in some (many? most?) states, the law requires that anything a company sells must work for a reasonable period of time, even if the company says the product is being sold "as is" (as a technical matter I think these laws say that there can be no waiver of the warranty of implied merchantability).

It would be helpful if someone at on the blog, or in comments, could confirm if that's right or not, and how widespread it is. The fact that a company says you have no rights doesn't mean it's true (and the last thing we need is the Post reporting it's true if it isn't).

Posted by: Doh | April 11, 2006 11:39 AM

Most reputable e-tailers will have their Terms & Conditions available in the text navigation at the bottom of the page or in the customer service section of the site. If they don't, the user should request them before placing an order.

Posted by: Danielle fr. Gmail | April 11, 2006 11:54 AM

Most (if not all) states have the Uniform Commercial Code codified in their laws. Under the UCC (as it is commonly known) in a sale there are many 'implied warranties'. Usually, these warranties cannot be waived by either the seller or buyer. An example of an implied warrarnty is fitness for a particular purpose; that is, the product will work for the purpose for which it was intended to work: a fridge will keep things cold.

In Massachusetts where I used to practice law, if a seller tried to force a buyer to waive such an implied warranty, it was considered a violation of the state's consumer protection laws as Mass. law said implied warrranties could not be waived. As such, the seller was subject to potential monetary damages.

The bottom line is that you should check the state you live in for its laws/rules on implied warrranties and check the state out where you buy the goods from. What law applies in the transaction can be a murky area (the fact the seller says what law applies in its terms and conditions may not be the be all and end all) and must be checked with a lawyer.

One final note: I often argued, successfully, that forcing a consumer to waive his/her implied warranties is an unconsciousable act under contract law. That is, since the seller almost always has better bargaining position, its denial of implied warranties is in itself an act that would make the average person feel his/her conscience is shattered as the seller is using its power to crush any rights a buyer might normally have.

When one party who has better bargaining position pushes the other party around so badly, the aura of an uncoinsciousable act is in view.


Bottom line: always insist that you have rights. Don't back down. Remind the seller that if you go to court, you can subpoena the president of the corporation, the head manager, the head cpa, you get the idea..

Does this low-level clerk want to be the one to tell the CEO that the reason the corp. is spending money to have the CEO testify is beacuse the clerk refused to exchange/repair an item?

Posted by: caliban | April 11, 2006 1:28 PM

I'm responding to a couple of the comments above:
To Doh's request about state laws requiring anything stores sell must work, here's what Consumer Reports says in its article: "Some states, including Maine and Maryland, ban all disclaimers on implied warranties, but Web sales remain a legal question mark because they often cross state lines."

As for Danielle's comments that most reputable etailers have their terms and conditions up front, I would hope so--but found that in doing some Web searching for this blog item that wasn't the case. he terms and conditions on almost all the major well-known retailers I clicked were hard to find, and could only be obtained after I placed something in my cart and entered my address etc.

Posted by: Caroline Mayer | April 11, 2006 1:31 PM

IANAL, but laws do vary widely by state. If you need a refund from a reluctant merchant, a little research into your state's version of the Uniform Commercial Code - and the merchant's state as well - can go a long way.

Here's a form letter I put together that I've successfully used to get refunds on defective merchandise, including a $3,000 laptop:

----

Your state, like most states, bases its commerce laws on the Uniform Commercial Code (UCC). You can read a copy of your state's commercial code at:

http://state.@@@.us/

Article II, parts 2 and 6 cover the implied warranty granted by the UCC.

IMPLIED WARRANTY

Section 2-314 of the UCC declares that all items, unless otherwise marked, have an "implied warranty of merchantability" that guarantees the item does what it is designed to do and what it claims to do.

DISCLAIMER OF THE IMPLIED WARRANTY

Your web site attempts to disclaim the implied warranty by stating that @@@. However, this does not meet the legal requirement of a conspicuous notice, because @@@.

@@@California:@@@In addition, under the Song-Beverly act, California requires the disclaimer to be in writing on the item itself, or for mail order catalogs, the writing must be on EACH item offered as-is. Even if your disclaimer were conspicuous, it would not meet this requirement.

Result: There is still an implied warranty.

JURISDICTION

Your web site states that your policies are to be determined under @@@ law. This is usually unenforceable in a "contract of adhesion" - that is, a contract that was not actually negotated, but merely offered take-it-or-leave-it. This specific topic was addressed in Sierra Diesel Injection Service, Inc., v. Burroughs Corporation, Inc. (9th Cir 1989), which stated that such contracts are "usually construed against the drafter".

In addition, since your site does not require me to click anywhere to accept your terms, a recent court case has declared that there IS no express contract between us; I never accepted that contract, merely an implied contract of sale. See Specht v. Netscape Communs. Corp. (2nd Cir 2001).

This means I could file suit in Massachusetts, my home state, rather than @@@. In Massachusetts, I would win, because Massachusetts does not allow the disclaimer of implied warranty by ANY means whatsoever, even if we both wrote it in our own blood.

Result: There is definitely still an implied warranty.

REMEDIES

So what options do I have? According to Article II, Part 6, section 2-601 of the UCC, I have the right to reject the merchandise. "But wait!" I hear you saying. "You didn't refuse delivery!" Under section 2-602, rejection may occur "within a reasonable time after their delivery." And section 2-606 defines acceptance as occuring only after a "reasonable opportunity to inspect the goods".

Result: I am hereby rejecting the merchandise.

SHIPPING CHARGES

The UCC does not require me to pay shipping back to you. In fact, it does not require me to ship it to you at all. Under section 2-602, subsection (2)(b), all I have to do is "permit the seller to remove them", and I have "no further obligation" whatsoever.

Result: For expediency's sake, I am willing to go further than the law requires, and ship the goods back to you at your expense.

Posted by: Jay Levitt | April 11, 2006 1:39 PM

Gosh, Jay, does that work? That would be so satisfying. But this all reinforces my preference for buying expensive items in real, live stores.

Posted by: h3 | April 11, 2006 2:29 PM

Target.com - good results.

I bought a crib from Target.com, and discovered a couple of months later (when I decided to put it together) that one of the boards was defective. I contacted the manufacture (first), but they were USELESS, and finally relayed my situation to target.com by phone. They were extremely helpful, they shipped out a new crib, and asked me to pull out the "replacement board" and put in the bad board. They shipped the crib in a week, and gave me a paid label for the return freight as well.

Posted by: Dawn | April 11, 2006 3:33 PM

Hi Caroline -

Just out of curiousity - which sites did you check out? Here are the sites where I pretty easily found their return policies:
Walmart.com - 1 click from homepage
Target.com - 2 clicks
Amazon - 1 Click
Best Buy - 5 clicks (I chose the wrong option in the Returns info at first)
Overstock.com - 2 clicks

I didn't have to go into a shopping cart for any of them. Admittedly, I'm at an advantage because I work in the web development industry with a company that specializes in e-commerce and heavy information sites so I know where to look.

Maybe it would be worth doing an article on e-commerce development standards so readers know where to look for that sort of info.

Posted by: Danielle fr. Gmail | April 12, 2006 8:39 AM

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