In December last year, Folake decided to have a detty December after a tedious work year, and in order to achieve this, she needed to buy the best of hairs and outfits.
Folake went on Instagram and found a vendor who seemed genuine and had the picture-perfect hairs for sale. She went through the page and settled for a ''bone straight'' which was described on the vendor's page as:
"18 inches lush, soft, no tangling, no shedding, super double drawn luxurious bone straight with lifetime guarantee. What you see is what you get"
Seeing this, Folake hurriedly made the payment of N190,000 (one hundred and ninety thousand naira) to the vendor. In the same vein, Folake ordered for 2 dresses and a jumpsuit from a US e-commerce store that advertised 7 days fast shipping to Nigeria. Upon delivery of the hair, there was certainly nothing lush, soft or straight about it. It was a complete contrast of what she saw online. At that point, she realized she had finally joined the band wagon of the trending list of victims of online shopping with the much resonating phrase of; "what I ordered vs what I got". She was confused on her next line of action as she had spent a 'whooping' sum in purchasing the item.
I believe Folake's experience readily brings back memories of a personal experience for majority of the readers who had at some point purchased items off online shops or perhaps know someone who has been in such situation. This development raises a number of salient questions about the diverse implications of these transactions and redress options available to the growing list of victims. In the succeeding paragraphs, I will raise and answer some of these questions and if I have left any questions out, you can share them via email.
1. Is there a contract between a vendor and a purchaser in an e-commerce transaction?
It is primary knowledge that there is generally no specific form in which a contract maybe entered into. The court succinctly puts it this way: "It is elementary law that a contract maybe demonstrated by the conduct of the parties, as well as by their words, deeds or by the documents that have passed between them".1 Thus, a contract may be entered into either orally, in writing or by conduct.
In this sense, a contract may also be brought into existence electronically by online communications, a process which is called online contract. Similarly, there exists a contract for the sale of goods between a vendor and a purchaser. This contract of sale of goods is a contract whereby the seller transfers the property in the goods to the buyer for a money consideration called the price.2
In light of this, it is important to note that the display of goods online does not automatically create a contract between the vendor and a browsing online shopper, rather, it is a mere invitation to treat from the vendor. An offer is established where the shopper communicates his desire to purchase the goods displayed. For example, an e-commerce site could advertise items or services for sale, and the consumer fills out and submits an order form that appears on the website. Upon receipt of the order (offer), he has the choice whether to accept or reject (cancel) the order. A contract is formed when the seller accepts the order (offer).3
In the case of social media transactions which do not require the submission of an order form, the display of goods on the vendors page constitutes an 'invitation' to treat. The indication of interest to the vendor through the means of direct messaging (DM), phone call or writing in the comment section of a post constitutes an 'offer', which the seller may accept or reject, while the payment of the price for the goods or services is the consideration. The same rules that apply in cases of display of goods for sale equally apply.
This means that the display of goods on websites constitutes an invitation to treat and the shopper's decision to act on same, simpliciter, cannot constitute a valid contract. In BFI Group Corp. v. B.P.E. the Supreme Court clearly stated that:
An offer must be distinguished from an invitation to treat. Invitation to treat is the first step in negotiations between the parties to a contract. It may or may not lead to a definite offer being made by one of the parties to the negotiation. An invitation to treat is not an offer that can be accepted to lead to an agreement or contract"
The UNCITRAL model on ecommerce prescribes the global standard for the validity of contracts, matters of evidence, electronic signatures, payment system and other e-commerce law applicable to online business transactions. Therefore, it is right to conclude that once the above elements of contract are present, the law will recognise a contract between a vendor and a purchaser in an e-commerce transaction.
1. UBN V. Ogunsuji
2. Section 2, Sale of Goods Act (1893)
3. E. S. Perdue, "Creating Contracts Online" in T. J. Smedinghoff (ed.) Online
Originally published Jun 21, 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.