Mail Order Sales

The term "Mail Order Sales" are the sale of goods, rights, or the provision of services for which the seller or the service provider (*1) receives an offer for a sales contract or a service contract by "Postal Mail, etc." (*2).

TIPS

For example, it means a transaction method in which a consumer who saw advertising on newspaper, magazine, television, the Internet (including internet auction sites), direct mail, fliers, or other media makes an offer for purchase via postal mail, telephone, facsimile, the Internet, or other form of correspondence (however, the cases that fall under "Telemarketing Sales" are excluded.)

*1 "A seller or a service provider" refers to a person engaging in the sale of goods or the provision of services as a business. "Engaging as a business" means that transactions are performed repeatedly and continuously with the intention of making a profit. It should be noted that the existence of such intention will be objectively judged regardless of the person's intention. If the above requirements are met, even an individual becomes "business operator" under the Specified Commercial Transactions Act. For the view about whether a seller on an internet auction site falls under a "seller," please refer to "Guidelines related to Sellers in Internet Auctions."

*2 "Postal Mail, etc." includes any postal mail or correspondence delivery; methods using telephone, facsimile, or other communication devices or devices used for information processing; telegram; or payment to a deposit or savings account.

The term "Designated Rights" means, among the rights to use facilities or to receive services, those which are sold in transactions related to the daily lives of citizens, and which are specified by Cabinet Order.

The Specified Commercial Transactions Act does not apply to the following cases, etc.

• Contract concluded for business purposes or as part of business
• Contract with a person living overseas
• Sales or provision of services by the national or local governments
• Sales or provision of services by a partnership established based on a special law, an employee organization of government employees, or a labor union, to their respective members
• Sales or provision of services by a business operator to its employees
• Sales of newspapers issued by entities other than publicly listed companies
• Those for which it is found that consumer interests can be protected by other laws and regulations

Mail Order Sales are transactions between persons at a distance, and thus advertisements are the only information for consumers. So, if what is described via advertisements is insufficient or unclear, disputes will occur at a later date. Therefore, the Specified Commercial Transactions Act specifies that the following matters must be indicated in advertisements.

• Selling prices (consideration of services) (shipping charges also need to be indicated)
• Timing and means of paying the charges (consideration)
• Time at which the goods will be delivered (time at which the rights will be transferred, or the time at which the services will be provided)
• Information about the withdrawal/cancellation of an offer for a sales contract for the goods (or Designated Rights) (If there are special provisions on returns, a note to that effect must be included.)
• Name, address, and telephone number of the business operator
• If the business operator is a juridical person, and a method using an electronic data processing system is used for advertising, names of the seller's representative or the person responsible for business related to Mail Order Sales
• If there is an expiration date for the offer, such date
• If there are charges other than the selling price or shipping charges which purchasers should pay, their details and amounts
• If there are provisions about the responsibility of sellers for the case where the goods have latent defects, the details of such provisions
• If the transaction is related to so-called software, the operating environments for the software
• If there are special sales conditions (service conditions) such as the limitation of the sales quantity of goods, details of such conditions
• If a catalog, etc., is separately sent on request, and it is charged, the amount of the charge
• If a commercial advertisement is sent by e-mail, e-mail address of the business operator

Please see here for the detailed explanation about each matter to be indicated for Mail Order Sales.

Please see here for Q&A about matters to be indicated in advertisements for Mail Order Sales.

・Cases where matters to be indicated in advertisements can be omitted

Advertisement types vary widely with various advertisement spaces.
Therefore, the indication of all these matters is partly unrealistic and thus, if a note to the effect that a document (or e-mail in the case of Mail Order Sales on the Internet) describing these matters will be provided "without delay" upon a consumer's request is indicated in the advertisement, and measures are taken so as to actually provide it "without delay" upon request, the indication of some matters in the advertisement can be omitted as in the table below. (Proviso to Article 11 of the Act)

It should be noted that the provision "without delay" here means that it is provided with sufficient lead time before customers make up their minds to make an offer, reflecting the actual situation of transactions such as selling methods or offer expiration date. For example, in internet auctions, offer expiration dates are normally expedited, and many people often vie to make their offers before said dates, and thus it is considered to be difficult to provide such document "without delay."

*With regard to the time at which the goods will be delivered, "without delay" in "goods related to the offer will be delivered without delay" means about one week, considering the actual situation of the transaction.

*With regard to the withdrawal of an offer for a sales contract in Mail Order Sales (special provisions on returns), the indication of matters regarding "whether returns are possible," conditions such as return period and "the necessity of costs related to return" are not permitted to be omitted, and thus the indication is required to be devised by referring to "Guidelines on Indication of Special Provisions on Returns in Mail Order Sales." In addition, in the case of internet mail order, those matters are required to be indicated also on the final screen where the consumer finalizes their offer.

With regard to matters to be indicated, the Specified Commercial Transactions Act prohibits "indication that differs vastly from the truth" or "indication that misleads people into believing that it is vastly better or more advantageous than it is in reality" in order to prevent consumer problems caused by misleading advertising, or advertisements which vastly differ from the truth.

In principle, a business operator is prohibited from sending e-mail advertising unless the consumer gave his or her consent in advance. (Opt-in regulation)

This regulation is not only for business operators of Mail Order Sales (Provision), but also for business operators entrusted with e-mail that advertises Mail Order Sales. Therefore, if a consent to, or a request for the provision of the e-mail advertising was received from a consumer, it is necessary to keep a record of the consent or the request for three years from the date when the last e-mail advertising was sent. The controls do not apply to the following cases.

• Advertisements accompanying "conclusion of contract," "confirmation of order," "notification of shipment," etc.
  Cases in which the advertisements are included as part of an e-mail making notification of "important items" such as notifications related to the contents or performance of the contract
• Advertisements accompanying mail magazines
  Cases in which the advertisements are included as part of the e-mail advertising which is sent with the request or consent of the consumer
• Advertisements accompanying free e-mail
  Cases in which the advertisements are included as part of the e-mail sent from an e-mail account created for free on the Internet using a service in which a free e-mail account is given on the condition that advertisements will be automatically included in every email sent from that account.

In the case of "prepaid" Mail Order Sales in which the charges (consideration) are paid in whole or in part prior to the delivery of the goods (the transfer of the rights, the provision of the services) to a consumer, a business operator must deliver a document that describes the acceptance or non-acceptance of the offer and other matters listed below, if it will take time until goods are delivered after the charges are received.

• The acceptance or non-acceptance of the offer (if the business operator does not accept the offer, he or she must clarify that the received money will be immediately refunded, and how the money will be refunded.)
• If the acceptance or non-acceptance of the offer was notified before receiving the charges (consideration), a notice to that effect.
• Name, address, and telephone number of the business operator
• The amount of received money (if any money has been received previously, the total amount)
• Date on which the money was received
• Goods for which the offer was received, and their quantity (types of rights and services)
• If the offer is accepted, the time at which the goods will be delivered (time at which the rights will be transferred, or the time at which the services will be provided) (a specific period or deadline must be given)

The withdrawal of the offer for a sales contract in Mail Order Sales is permitted, and thus a business operator is prohibited from refusing to perform, or unjustly delaying the performance of the obligations such as refund if both parties to the contract are obliged to restore it to its original state.

For example, in Internet Mail Order, the Specified Commercial Transactions Act prohibits the following acts as "acts of making a customer to offer a contract against its will," and they will be subject to administrative deposition:

• The act of not showing a button so as to enable consumers to easily recognize that clicking on the button leads to a chargeable offer; and
• The act of not taking measures so as to enable consumers to easily confirm and correct their offer contents in making the offer.

Please see the "Guidelines related to the Act of making a Customer Offer a Contract Against His or Her Will in Internet Mail Order" about which cases specifically fall under these acts.

A business operator who violated the above administrative controls becomes subject to penalties in addition to administrative disposition such as an instruction of business improvement (Article 14 of the Act) or business suspension order (Article 15 of the Act).

Even if a consumer made an offer for a contract or concluded a contract in Mail Order Sales, the consumer may withdraw or cancel the contract offer with a business operator within 8 days after receiving the delivery of the goods (transfer of designated rights) related to the contract, and return the goods with the burden of shipping charges on the consumer. However, if the business operator indicated special provisions about the withdrawal or cancellation of the offer for the contract in advertising in advance, such special provisions should apply.

If a business operator has shown or is likely to show misleading advertisements, etc. to many and unspecified persons in relation to advertising of Mail Order Sales, a Qualified Consumer Organization may demand that the business operator discontinue or prevent the relevant conduct, or take any other necessary measures.