Legal risks associated with online trading in Vietnam

Mr. Nguyen Thanh Ha – Mr. Bui Chinh Tam

DIMAC Law Firm

Trading of goods can now be made in different ways, including through e-commerce. Online trading activities in Vietnam are mainly governed by the Commercial Law, the E-Transactions Law, and Decree 52/2013/ND-CP on e-commerce. Given the convenience of on-line trading, many buyers do not pay attention to the terms and conditions set out by sellers, which may materially affect buyers’ rights and interests. In addition, sellers’ failure, whether intentionally or unintentionally, to comply with applicable laws, may result in buyers’ rights being infringed upon. We, DIMAC Law Firm (“DIMAC”), have recently acted for a client to defend its legitimate rights which are violated by an on-line trader and would like to share our experience below for your information.

A buyer has placed an order to purchase on an e-website in which the price of goods was not correctly listed. The buyer paid for the goods by credit card and waited for its delivery. It was then that the seller notified the buyer that the order was cancelled due to the seller’s mistake in listing the wrong price. The seller further informed that this transaction can only be conducted if the buyer accepted a new price, much higher than the listed one.

The seller argued that it had the right to cancel the order for any reason as set forth in its Terms and Conditions[1], which were accepted by the buyer by clicking “I agree” (with these Terms and Conditions) before proceeding with payment. Consequently, a dispute arose as the seller did not want to deliver the goods at the price that the buyer had successfully ordered.

The 2010 Law on Protection of Consumers’ Rights[2] does not allow the seller to set out (i) provisions that exclude its liabilities to customers; (ii) unilaterally amend terms and conditions that have been previously agreed upon with customers; and (iii) adjust the price at the time of delivery. Accordingly, it is clear that the above argument by the seller is not in line with these provisions.

In this case, if the parties cannot reach an agreement on the sale of goods, the seller may request the court to declare the transaction to be invalid as a result of its mistake in listing the price[3]. As requested by law[4], the seller must prove such this transaction is invalid due to a mistaken element. If the transaction is regarded to be invalid, the parties must return to each other what has been received by them.

As requesting the court to declare the above transaction invalid would be a time-consuming process, both parties should consider settling the dispute through negotiation. The buyer needs to demonstrate that the seller’s Terms and Conditions are not in conformity with the applicable laws. The seller, on the other hand, should keep his credibility and cooperate with the buyer. The seller may explain to the customer that the error in price listing was unintentional and persuaded the customer to accept a new reasonable price. The parties may agree on a fair price based on the market price of such item.

To better compliance with the law, the seller should amend its terms and conditions on sale to remove the clause on exclusion of liabilities to its customers as mentioned above.

 


[1] Article 3 in Terms and Conditions on e-website: "We have the right to refuse or cancel your order for any reason at any time"

[2] Point a, c, đ Clause 1 Article 16 of the 2010 Law on Protection of Consumers’ Rights:

1. Terms of the contracts concluded with consumers and general trading conditions shall have no effect in the following cases:

a) Where they exclude liability of organizations or individuals trading goods and/or services to consumers as prescribed by laws;

b) Where they allow organizations or individuals trading goods and/or services to unilaterally change the conditions of the contract agreed in advance with the consumer or the rules, regulations for goods sales or service supply applies to consumers when buying and using goods and/or services do not specifically indicate in the contract

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đ) Where they allow organizations or individuals trading goods and/or services to set forth or change the price at the time of delivery of goods or providing of services.

[3] Article 126.1, the 2015Civil Code

[4] Point a Clause 1 Article 91 of the 2015 Code of Civil Procedure:

a) Litigators are customers who are not required to prove faults of organizations and individuals trading goods and/or services Organizations and individuals trading goods/services that are sued shall be obliged to prove that they have no fault that leads to the damage as provided for in the Law on protection of Consumers’ Rights;