Need for Care and Skill

A Chief Executive of one Business Transfer Agent often claims that 'you are not a consumer' and he implies that the Supply of Goods and Services Act does not apply, because you run a business. What he writes is not the truth, the whole truth, and nothing but the truth. Devon and Somerset Trading Standards advise, on https://www.devonsomersettradingstandards.gov.uk/business/consumer-rights/business-to-business-contracts/

Sale of Goods Act and Supply of Goods and Services Act

Most of the Sale of Goods Act and the Supply of Goods and Services Act still applies to business-to-business contracts.

The business does not get an automatic right to a refund if a second fault occurs with a product nor is the burden of proof reversed if there is a dispute as to whether the fault was present at the time of purchase. Instead the court is likely to pick the solution they feel is most reasonable, which might be refund if the product is faulty as soon as it arrives or very shortly afterwards. If the problem occurs later or is an easily remedied problem with a service then the court may choose a free repair as a solution or replacement if that is impossible or would cause a significant inconvenience to you.

However, bear in mind that the supplier of the goods or service may have attempted to limit or exclude their liability using their claim that it is a business-to-business contract. Check whether the contract uses the words 'business to business', check whether the contract attempts to exclude any verbal representations made by the Field Sales Agent. You may have relied totally on his words and signed based on what he said. The text below is from: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31356/12-960-supply-of-services-impact.pdf

Implied Terms

When consumers buy a service, they enter into a contract with the business providing that service. Consumers can expect the service under the contract to be delivered with reasonable care and skill” regardless of whether the contract make direct reference to the standard or not.

The law states that “reasonable care and skill” is an implied term into all service contracts, which means that where it is not expressly set out in the contract, it still applies. To do otherwise would result in negligence on the part of the business (negligence can be used as shorthand for the lack of reasonable care and skill). However, consumers may not be aware that this implied term is present in their favour.

In some circumstances, businesses may have a clause that (attempts to) exclude or limit their liability for negligence in a contract with a consumer, ie limit the extent of “reasonable care and skill” they must show when supplying the service or at the very least limit their liability arising out of the failure to display reasonable care and skill.

This can only be done where the supplier and the customer expressly agree to the limitation or it is consistent with the way both parties have acted. It is sufficient for the supplier to include such limitations on their standard terms and conditions where the consumer has implicitly or explicitly agreed to them. The exclusions must be considered to be “reasonable” or they will not be enforceable.

But consumers may not be aware of this limitation or have any appreciation of when limitations of liability would be found to be reasonable, tending to take the limitation of liability therefore at face value.

As a result, consumers may be waiving their statutory rights when entering into such service contracts or even in cases where such waivers would be unenforceable, they may think they have done so. In contrast, Section 6 of the Unfair Contract Terms Act makes it clear that the implied term that goods must be of satisfactory quality, cannot be excluded or restricted by another term.