Recent trends on various social media platforms have included self-deprecating posts by online shoppers with the tagline "What you order vs What you get".
In these posts, consumers showcase a side-by-side comparison of products purchased through e-commerce, revealing the disparities between expectations and reality.
Buyers vocalise their discontent on the delivered purchases of products such as cakes, clothes, furniture, flowers and food by attaching the delivered goods to the hashtag #WhatIOrdered and in essence, embarrassing the supplier by warning people about them.
In the conventional transactional landscape, consumers naturally anticipate that the products they see advertised will be similar - in all respects - to the products they ultimately receive. When this expectation is not met, buyers feel a sense of deception, betrayed trust and even a feeling of being scammed.
Whilst e-commerce is a relatively recent construct in Kenya, the Sale of Goods Act nonetheless, takes consumer expectations into account. Under section 15, the Act embodies an implied condition that products sold by sample must unequivocally match the sample provided.
This provision underscores the critical notion that the advertised product should authentically represent the actual product. Should the advertised product deviate from this authenticity, as has been the case where some sellers lift images from the internet and advertise them as their own, then such sellers are deemed to be engaged in a false representation, as stipulated in section 12 of the Consumer Protection Act. This also constitutes an unfair trade practice.
Additionally, there may be elements of the offense of false advertising under the Trade Descriptions Act. This offence attracts penalties ranging from fines of up to Sh2,000,000or imprisonment for a term not exceeding five years, or both.
In the face of these sanctions, and to foster a balanced and equitable exchange, it is paramount that sellers and buyers engage on an even playing field, devoid of any deceptive tactics that may disadvantage either party.
Buyers ought to be accorded the privilege to inspect goods prior to finalising their purchase to facilitate a buyer-seller equilibrium. This opportunity acts as a preventive measure against potential future grievances or product returns arising from the subpar quality of supplied goods.
Embedded within this right of inspection is the legal principle commonly known as "buyer beware," eloquently articulated through the Latin maxim "caveat emptor."
This principle assigns the responsibility to buyers to diligently scrutinise the goods to ensure they align with their intended purpose.
Sellers are absolved from disclosing obvious physical defects that would be discernible through careful examination. Conversely, sellers are obligated to reveal latent defects—defects not immediately apparent through physical inspection.
However, the advent of e-commerce has rendered the notion of pre-purchase inspections virtually impossible, as consumers' first interaction with the products occurs upon delivery.
This limitation accentuates the necessity for sellers to uphold transparency by disclosing all pertinent information, including material facts and defects, which could sway the buyer's decision to proceed or abstain from the purchase.
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In the legal context of Kenya, the rights of consumers are firmly recognised. Article 46 of the Constitution bestows consumers with the entitlement to products and services of reasonable quality, alongside the requisite information about these offerings.
Furthermore, consumers are entitled to compensation in cases of loss, injury, or defects resulting from the purchased products or services.
In scenarios where the received goods deviate from the promised sample, description, advertisement, or representation, the buyer is empowered to take a series of actions.
These options encompass the choice to reject or accept the goods, pursue legal action for breach of contract, or lodge a formal complaint with the Competition Authority. Legally, such breaches stem from implied warranties or conditions concerning the quality or fitness of the goods.
For those buyers who opt to take legal recourse, it is imperative to substantiate their claims with a robust body of evidence. This evidence may include the sales contract, advertisements, receipts, and other relevant documentation.
In most instances, such aggrieved buyers stand to recover the sum paid for the goods. Most buyers however seem to simply stop at expressing their disgust online as the items purchased are not bulky and the costs of pursuing recompense seem higher.
The evolving landscape of consumer-commerce interactions, particularly in the realm of e-commerce, necessitates a comprehensive understanding of the intricate legal framework that safeguards the interests of both buyers and sellers. Transparency, authenticity, and balanced engagement are the cornerstones of a thriving and trustworthy marketplace.