Secured payments, consumer protection and buyer recourse...

[Bitcoinorama]

I'm not offering legal advice. I'm sharing and collating information from renown and respected consumer sites, and where possible from governmental bodies or affiliate organisations that oversee their citizens advice.

KS please, your a known troll, please keep to the threads you lurk in and not ruin another thread with your usual spite. If you have an axe to grind, stop pursuing me from one place to the next and just keep it to PMs.

This thread as I said if for continuous development as and when members have something relevant and useful to share from their location.

[KS]

This "troll" has done his due diligence, called his lawyer, and is not trying to "win" arguments by calling others "troll" while either avoiding to answer questions in a debatable manner or deflecting them by throwing empty accusations

Contact your lawyer and validate/invalidate my point.

Easy peasy.

[Bitcoinorama]

This "troll" has done his due diligence, called his lawyer, and is not trying to "win" arguments by calling others "troll" while either avoiding to answer questions in a debatable manner or deflecting them by throwing empty accusations

Contact your lawyer and validate/invalidate my point.

Easy peasy.

I'm not trying to 'win' arguments with you. I've already stated I want nothing to do with you. Your intentions are not sincere, anyone who reads through your posting history can see that. You relentlessly pursue me from one thread to the other in some bizarre game of one-up-manship. This is trolling.

I hope both of our orders arrive on time, but I have no interest in communicating with an angry little man who just won't quit.

Just give it up. I'm not interested, you're on ignore.

[KS]

Good. I don't care about winning an argument, I'm asking for answers that you refuse to provide, for you own mysterious reasons.

Is it too difficult for you to have your claims checked by an actual lawyer? Are you afraid of what he/she may say?

Apart from laziness, I'm struggling to see why you'd refuse to do that, given you're so into defending the consumers.

[Bitcoinorama]

Good. I don't care about winning an argument, I'm asking for answers that you refuse to provide, for you own mysterious reasons.

Is it too difficult for you to have your claims checked by an actual lawyer? Are you afraid of what he/she may say?

Apart from laziness, I'm struggling to see why you'd refuse to do that, given you're so into defending the consumers.

Because I don't bloody need to, when I've found what I need from the UK Government's own bloody ruling and the official Citizen's Advice Beaureau, and pasted their precise stance and provided links to their official sites. It's why they exist.

Are they they responsible for setting the legal precident, or is some guy that will charge me to regurgitate the exact same information?

You have no basis for any argument, and you are so desperate to take the high road, this feeble attempt to retain some form of superiority, you're honestly baiting me to spend cash to prove you wrong. Don't need to, you pay for a lawyer familiar with UK consumer law. He'll just dig up the same as I have, why? Because it's from the horses mouth;

http://www.ofmdfmni.gov.uk/index/equality/statutory-duty.htm
http://www.citizensadvice.org.uk/index/aboutus/cab_key_facts.htm

Also there's been no laziness on my part, I've spent hours looking into this.

[murraypaul]

While it is true that a B2B contract may not take away all of the consumer protection that would apply to a B2C contract, it does take away considerable portions of it, such as the Unfair Terms in Consumer Contracts Regulations, which do not apply to B2B contracts. The Distance Selling Regulations would also not apply.
And, in general, when interpreting B2B contracts, courts will take the view that each side has received appropriate advice, and negotiated a contract that matches their wishes, while with a standard fixed B2C contract that the consumer does not have the opportunity to negotiate, they will recognise the imbalance of arms, and construe all terms in a way that favours the consumer.

[Bitcoinorama]

While it is true that a B2B contract may not take away all of the consumer protection that would apply to a B2C contract, it does take away considerable portions of it, such as the Unfair Terms in Consumer Contracts Regulations, which do not apply to B2B contracts. The Distance Selling Regulations would also not apply.
And, in general, when interpreting B2B contracts, courts will take the view that each side has received appropriate advice, and negotiated a contract that matches their wishes, while with a standard fixed B2C contract that the consumer does not have the opportunity to negotiate, they will recognise the imbalance of arms, and construe all terms in a way that favours the consumer.

Thank-you Murray.

Business to business sales, are consumer rights applicable? (Note: this is UK focused)

In short, yes, unless the company you are dealing with has specifically underwritten terms in their Terms and Conditions negating aspects of your consumer rights. This is known as an exclusion clause, and is yet another reason why Terms and Conditions should always be read and thoroughly discussed in your respective thread.

How do you know if the contract (business to business) takes away your statutory rights?

If the person who sold you the goods or services has taken away your statutory rights, there should be something in your contract about this. For example, it might say  the seller isn't responsible for goods that are unsatisfactory, don't match their description or aren't fit for purpose. Or it might say that the seller isn't responsible for any loss you've suffered because of their lack of care or skill. This type of content in a contract is called an exclusion clause.

http://www.adviceguide.org.uk/england/consumer_e/consumer_problems_with_business_to_business_services_e/consumer_protection_for_businesses.htm

[murraypaul]

In particular, sections 10 and 11 of the Distance Selling Regulations, which would otherwise have given an absolute right to cancel, will not apply to a pre-order written as a B2B contract rather than a B2C one. In the particular field of Bitcoin ASIC miner pre-orders, I think that is quite a significant loss!

Edit: If by repeating that quote, you intend to imply that there is no loss of protection, you are simply wrong.

From the Distance Selling Regulations:

“consumer” means any natural person who, in contracts to which these Regulations apply, is acting for purposes which are outside his business;
[...]
Right to cancel
10.—(1) Subject to regulation 13, if within the cancellation period set out in regulations 11 and 12, the consumer gives a notice of cancellation to the supplier, or any other person previously notified by the supplier to the consumer as a person to whom notice of cancellation may be given, the notice of cancellation shall operate to cancel the contract.
(2) Except as otherwise provided by these Regulations, the effect of a notice of cancellation is that the contract shall be treated as if it had not been made.

This simply does not apply to businesses.

Similarly for the Unfair Terms in Consumer Contracts Regulations:

What terms are not covered?

Most standard terms are covered by the UTCCRs. The exceptions are those:

    that reflect provisions which by law have to be included in contracts
    that have been individually negotiated
    in contracts between businesses
    in contracts between private individuals
    in certain contracts that people do not make as consumers – for example, relating to employment or setting up a business
    in contracts entered into before 1995.

And, from the OFTs guidance on the UTCCR:

The fact that certain customers – even a majority – are not consumers does not justify exclusion of liability that could affect consumers. However, there is no objection under the Regulations to terms which cannot affect consumers, for example those which exclude liability for business losses, or losses to business customers.

[KS]

While it is true that a B2B contract may not take away all of the consumer protection that would apply to a B2C contract, it does take away considerable portions of it, such as the Unfair Terms in Consumer Contracts Regulations, which do not apply to B2B contracts. The Distance Selling Regulations would also not apply.
And, in general, when interpreting B2B contracts, courts will take the view that each side has received appropriate advice, and negotiated a contract that matches their wishes, while with a standard fixed B2C contract that the consumer does not have the opportunity to negotiate, they will recognise the imbalance of arms, and construe all terms in a way that favours the consumer.

While it is true that a B2B contract may not take away all of the consumer protection that would apply to a B2C contract, it does take away considerable portions of it, such as the Unfair Terms in Consumer Contracts Regulations, which do not apply to B2B contracts. The Distance Selling Regulations would also not apply.
And, in general, when interpreting B2B contracts, courts will take the view that each side has received appropriate advice, and negotiated a contract that matches their wishes, while with a standard fixed B2C contract that the consumer does not have the opportunity to negotiate, they will recognise the imbalance of arms, and construe all terms in a way that favours the consumer.

Thank-you Murray.

Business to business sales, are consumer rights applicable? (Note: this is UK focused)

In short, yes, unless the company you are dealing with has specifically underwritten terms in their Terms and Conditions negating aspects of your consumer rights. This is known as an exclusion clause, and is yet another reason why Terms and Conditions should always be read and thoroughly discussed in your respective thread.

How do you know if the contract (business to business) takes away your statutory rights?

If the person who sold you the goods or services has taken away your statutory rights, there should be something in your contract about this. For example, it might say  the seller isn't responsible for goods that are unsatisfactory, don't match their description or aren't fit for purpose. Or it might say that the seller isn't responsible for any loss you've suffered because of their lack of care or skill. This type of content in a contract is called an exclusion clause.

http://www.adviceguide.org.uk/england/consumer_e/consumer_problems_with_business_to_business_services_e/consumer_protection_for_businesses.htm

In particular, sections 10 and 11 of the Distance Selling Regulations, which would otherwise have given an absolute right to cancel, will not apply to a pre-order written as a B2B contract rather than a B2C one. In the particular field of Bitcoin ASIC miner pre-orders, I think that is quite a significant loss!

Edit: If by repeating that quote, you intend to imply that there is no loss of protection, you are simply wrong.

From the Distance Selling Regulations:

“consumer” means any natural person who, in contracts to which these Regulations apply, is acting for purposes which are outside his business;
[...]
Right to cancel
10.—(1) Subject to regulation 13, if within the cancellation period set out in regulations 11 and 12, the consumer gives a notice of cancellation to the supplier, or any other person previously notified by the supplier to the consumer as a person to whom notice of cancellation may be given, the notice of cancellation shall operate to cancel the contract.
(2) Except as otherwise provided by these Regulations, the effect of a notice of cancellation is that the contract shall be treated as if it had not been made.

This simply does not apply to businesses.

Similarly for the Unfair Terms in Consumer Contracts Regulations:

What terms are not covered?

Most standard terms are covered by the UTCCRs. The exceptions are those:

    that reflect provisions which by law have to be included in contracts
    that have been individually negotiated
    in contracts between businesses
    in contracts between private individuals
    in certain contracts that people do not make as consumers – for example, relating to employment or setting up a business
    in contracts entered into before 1995.

And, from the OFTs guidance on the UTCCR:

The fact that certain customers – even a majority – are not consumers does not justify exclusion of liability that could affect consumers. However, there is no objection under the Regulations to terms which cannot affect consumers, for example those which exclude liability for business losses, or losses to business customers.

Thank you murraypaul.

It seems I wasn't such a douche after all.

[Bitcoinorama]

Extra protection for sole traders

If you're a sole trader and you paid by credit, you may be able to make a claim against the credit company if things go wrong. Only ordinary consumers and sole traders have this right – it doesn't apply to other types of business trader.

http://www.adviceguide.org.uk/england/consumer_e/consumer_problems_with_business_to_business_services_e/consumer_protection_for_businesses.htm

[murraypaul]

Again, noone is saying that you have no protection with a B2B contract.
But you do not have the same level of protection that you would with a B2C contract. You just don't. The Distance Selling Regulations, which would otherwise provide a complete right to a refund, do not apply, and you do not have the same protection from unfair contract terms. Those are just the facts.

[Bitcoinorama]

Again, noone is saying that you have no protection with a B2B contract.
But you do not have the same level of protection that you would with a B2C contract. You just don't. The Distance Selling Regulations, which would otherwise provide a complete right to a refund, do not apply.

True and that will effect those that have paid with BTC and wire transfers.

[murraypaul]

Again, noone is saying that you have no protection with a B2B contract.
But you do not have the same level of protection that you would with a B2C contract. You just don't. The Distance Selling Regulations, which would otherwise provide a complete right to a refund, do not apply.

True and that will effect those that have paid with BTC and wire transfers.

Or by credit card, or by debit card, or by cash, or any other method.
Edit: You have protection from your credit card company if you can prove that the [supplier] company has failed to live up to the contract. But you do not have the benefit of consumer protection when deciding whether they have lived up to the contract or not. You don't have a right to cancel, so they can't have failed to provide you that right. You certainly aren't without rights, but you have fewer rights than you would have with a B2C contract.

Edit 2: In general, I am certainly in agreement that paying by credit card is by far the safest method of paying for goods. (Offtopic: But a very poor method for paying for ongoing services)

[Bitcoinorama]

Again, noone is saying that you have no protection with a B2B contract.
But you do not have the same level of protection that you would with a B2C contract. You just don't. The Distance Selling Regulations, which would otherwise provide a complete right to a refund, do not apply.

True and that will effect those that have paid with BTC and wire transfers.

Or by credit card, or by debit card, or by cash, or any other method.

Unless you have called your card issuing bank, explained the circumstances and they have said they are content with offering you protection when making the purchase.

[KS]

Again, noone is saying that you have no protection with a B2B contract.
But you do not have the same level of protection that you would with a B2C contract. You just don't. The Distance Selling Regulations, which would otherwise provide a complete right to a refund, do not apply, and you do not have the same protection from unfair contract terms. Those are just the facts.

What would a private person (consumer) be considered to be in court (B2C or B2B) if ordering products specifically stated as being sold only to businesses (and the consumer agrees by the T&C to be a business)?

Would he/she still be considered a consumer or a "business"? (I'm assuming UK law)

Incidentally, without prior approval by the bank/CC company, could the CC company deny a refund on the basis that it's a B2B (vs B2C) case? (is B2C/B2B misrepresentation by the customer an issue?)

So great to have finally s.o. who knows what he's talking about.

[murraypaul]

I'm not a lawyer, and wouldn't claim to be, although I do ahve an interest in the law. My responses are based on reading the relevant legislation and the guidance for it.
The issue isn't whether the credit card company would refuse to give you a refund when you were entitled to one, they wouldn't.
The difference is when you are entitled to one. That depends on two things:
a) the contract of sale, and interpretation of that, both in terms of interpreting clauses and in possibly finding some to be void, differs whether it is B2C or B2B
b) specific consumer protection legislation, such as the Distance Selling Regulations
If you went to court you may well be able to demonstrate the the B2B clause was a sham, and that you should be entitled to be treated as a consumer, but who is going to go to that level of hassle?
And finally, it may well be in Bitcoinorama's cause he has made an agreement which provides him with an equivalent level of protection, so as a practical matter for him it makes no difference.
My disagreement is with the broader statement that all levels of consumer protection apply to B2B contracts as they do to B2C ones, that isn't true.

Regardless of this, paying by credit card, even with a B2B clause in the agreement, provides you with much greater protection than paying with Bitcoin, where you have essentially no enforceable rights without going to court to set a precedent.

[KS]

I'm not a lawyer, and wouldn't claim to be, although I do ahve an interest in the law. My responses are based on reading the relevant legislation and the guidance for it.
The issue isn't whether the credit card company would refuse to give you a refund when you were entitled to one, they wouldn't.

OK but....

The difference is when you are entitled to one. That depends on two things:
a) the contract of sale, and interpretation of that, both in terms of interpreting clauses and in possibly finding some to be void, differs whether it is B2C or B2B
b) specific consumer protection legislation, such as the Distance Selling Regulations
If you went to court you may well be able to demonstrate the the B2B clause was a sham, and that you should be entitled to be treated as a consumer, but who is going to go to that level of hassle?

...given the above, in a B2B case, would you still need to sue first (and win) before getting a CC refund?

And finally, it may well be in Bitcoinorama's cause he has made an agreement which provides him with an equivalent level of protection, so as a practical matter for him it makes no difference.

I find this unlikely (maybe he'll confirm/rebute)

My disagreement is with the broader statement that all levels of consumer protection apply to B2B contracts as they do to B2C ones, that isn't true.

I've been trying to bring the point home for a while but failed spectacularly in his case. If he weren't so vocal and stubborn, things might have proceeded in a more civil manner.

Regardless of this, paying by credit card, even with a B2B clause in the agreement, provides you with much greater protection than paying with Bitcoin, where you have essentially no enforceable rights without going to court to set a precedent.

Right, so it's not because it's BTC vs CC, but obviously it is easier for you to use the current legislation (CC) vs trying to set a precedent (BTC / + you need to win!).

Thank you for your enlightened comments, I hope they'll help turn the discourse back to a more civil direction (no pun intended ).

[Bitcoinorama]

Murraypaul, with all due respect, I for one appreciate your stance, and sorry for KS's efforts in trying to embroil you in this.  He hasn't the slightest interest in helping others in this case (please see the KnC thread for ref).  

He's not a purchaser of any products with this company, or with secure payment means, he's not from the UK, so our law is of no real concern to him, he purely wishes to disrupt their progress as he has from the start.

He has a significant purchase in Avalon bulk chips, thousands of dollars worth, which obviously he has a lot less recourse for, so it's bizarre he's so vehmenet in making this his supposedly sincere concern, or for that matter why he'd apparently contact a Belgian lawyer, and discuss this, over his own purchase, which apparently he's nonchalant about.  He spent an inordinate amount of time crying scam with many false allegations that were proven time and time again to be of no genuine concern, again they are in the beginning of that thread for all to see.

He relentlessly pursues me from thread to thread trying to discredit me wherever possible. He is a troll in the absolute truest sense, and now he is intent on destroying a thread meant to benefit others, under the guise he pretends to care. I know where I stand legally, I spoke to my issuing bank who is offering to assume third party liability as oart of their own purchase protection, and I no longer have any interest in entertaining this weird stalker of a character, or his sudden interest in UK law.

Again Murraypaul if you have anything you wish me to update the beginning of the thread with, that you feel is of value, than by all means, please let me know, but for your sake, do not feed the troll.

[murraypaul]

Right, so it's not because it's BTC vs CC, but obviously it is easier for you to use the current legislation (CC) vs trying to set a precedent (BTC / + you need to win!).

With CC vs anything else, be it Bitcoin, debit card, whatever, your protection is much greater with the credit card.
This is because a credit card purchase is a three party contract, where your CC provider agrees to stand in place for the merchant in case of refund or other issues, and reimburse you directly.
Whether your CC company manage to then recover anything from the merchant is their problem, and doesn't affect you at all. If they don't, it is their loss, not yours.
With any other payment method, it is a two party contract between you and the merchant, and if they just run off with your money, or become insolvent, you are left with effectively no redress, you are just another unsecured creditor, unlikely to see any of your money back.
For any large single purchase, credit card is the most secure method, as it the only one which introduces a trusted, solvent, third party to effectively act as guarantor for the merchant.
(This is why some businesses find it so difficult to find a CC processor, because the CC company view them as too high risk.)
(All of this relating to the UK, I don't know the position elsewhere)

[CYPER]

Right, so it's not because it's BTC vs CC, but obviously it is easier for you to use the current legislation (CC) vs trying to set a precedent (BTC / + you need to win!).

With CC vs anything else, be it Bitcoin, debit card, whatever, your protection is much greater with the credit card.
This is because a credit card purchase is a three party contract, where your CC provider agrees to stand in place for the merchant in case of refund or other issues, and reimburse you directly.
Whether your CC company manage to then recover anything from the merchant is their problem, and doesn't affect you at all. If they don't, it is their loss, not yours.
With any other payment method, it is a two party contract between you and the merchant, and if they just run off with your money, or become insolvent, you are left with effectively no redress, you are just another unsecured creditor, unlikely to see any of your money back.
For any large single purchase, credit card is the most secure method, as it the only one which introduces a trusted, solvent, third party to effectively act as guarantor for the merchant.
(This is why some businesses find it so difficult to find a CC processor, because the CC company view them as too high risk.)
(All of this relating to the UK, I don't know the position elsewhere)

Well put