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#T3BE 304 - Full Question Text for Patrons (Patreon)

Published:
2022-11-28 01:00:05
Imported:
2023-01

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Anonymous

I don't often answer T3BE questions, but I'm copy-pasting my answer from Facebook, applying the UK's Consumer Rights Act 2015 (which itself implements the EU Consumer Rights Directive, so the answer would be broadly similar across Europe). First choice D, but possibly A. As a preliminary, it is definitely a consumer contract, either for "digital goods" or services, so the statutory provisions of the Consumer Rights Act appy. Either way, the advertising clearly establishes the channel as part of the service offering and so failing to provide the channel is a breach of the contract. If it's treated as a digital good, then as the channel was advertised as part of the offer, it forms part of the description of the goods. If it is treated as a service, then the consumer is able to rely on that description under the services provision in the CRA. As such, it's not B because there has clearly been a reduction in the service offered, and the CRA specifically gives consumers who are party to a contract for digital goods or services the right to either a price reduction, a full refund for all money paid, or a fix to return the service to the agreed state. If there were (and there would have to be under UK law, even if we don't see it) a written contract between the company and the consumer, and it contained a term that basically says "we can change the service offering at will literally days after you signed up", said term would considered automatically unfair as "A term which has the object or effect of permitting the trader to determine the characteristics of the subject matter of the contract after the consumer has become bound by it" (CRA 2015, Sch 2, Part I, para 12). So there's potentially been a breach. The problem with the question is it yokes together breach and remedy in kind of a weird way. Under the CRA, the consumer can choose either a full refund (which they could anyway, because it's still within the statutory cooling off period) OR a restoration of the existing service OR a reduction in price for the ongoing service without the channel. If the consumer chooses restoration of the existing service, and the cable company agree to it (i.e. there's no technical or commercial reason they can't restore the service), then the cable company have a reasonable period to restore it, so A is true. If the company does not restore the service but offers to do so for an extra charge, then I'd say the claim that they can't restore the service is clearly pre-textual, and the consumer could potentially seek, Elon Musk style, an order for specific performance (although the practicality of that is rather a faff compared to just calling your bank and saying "these jokesters are charging me for a service they're not providing" and cancelling the direct debit). But the text of the question doesn't go that far. If the consumer wants a reduction in price, or a full refund, then the cable company must provide it "without undue delay" and within 14 days maximum (ss44 and 45, CRA). All the remedies in the CRA depend on communicating with the other side. Unless they've made the company aware of the issue, there may have been a breach, but they don't yet have a claim. If you interpret the question as "the company communicated to the consumer that they're no longer providing the channel", then, yes, D isn't a sensible choice. BUT if you turned on your TV and it just wasn't on there anymore, well, that could just be a technical issue or a billing mistake. They still have to remedy it in accordance with the CRA (and common law), but the CRA provisions regarding remedies (including the max 14 day/no undue delay rule) kick in only once the consumer has notified the company of the problem. And no sensible judge in the land would entertain a small claims case that started "well, I didn't bother calling them or getting in contact in any way, my first reaction was to file a case in County Court". So, yeah, I've talked myself into D, but the question isn't specific enough to be certain. Or it might be if I were applying the correct jurisdiction's law. In defence of applying the wrong jurisdiction's laws: these kind of consumer protection laws are things you could have in your jurisdiction too! Vote! Organise! Lobby! (There's also the fact it is a regulated television service under the Communications Acts, and Ofcom would very likely want to have words with the cable company about their very dodgy advertising which might put their licence at risk. There's potentially a Trade Descriptions Act issue, and a very clear basis for complaint to the ASA for breach of the CAP code.)

Anonymous

E. Alfred Hitchcock.