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The Consumer Protection (Distance Selling) Regulations 2000, SI 2000/2334, incorporates[1] Directive 97/7/EC into law of the United Kingdom. They apply to contracts "concluded between a supplier and a consumer under an organised distance sales or services provision scheme run by the supplier who, for the purposes of the contract, makes use of one or more means of distance communication" up to and including the moment of contract formation.[2] This subordinate legislation provides for rights of the consumer and provisions for which the seller is obliged to fulfill. Examples may include ordering services by telephone or ordering goods via the internet.

Contents

Definition of a consumer

A Consumer is a "natural person who is acting for the purposes other than those of his trade, business or profession.[3] The definition is slightly broader than that for the purposes of the Unfair Contract Terms Act 1977 as the subjective requirement of the person not regarding herself as acting in the course of a business, therefore one may be a consumer if using a company account or using business details for tax purposes.

Obligations imposed upon the supplier

Information to be Communicated before Contract formation. reg 7(1)(a) -

  • (i) Identity of the supplier and address whereby payment is upfront.
  • (ii) A description of the service
  • (iii) The contract price inclusive of taxes
  • (iv) Delivery Cost (if applicable)
  • (v) Payment and delivery arrangement
  • (vi) Notification of the right of cancellation (reg 13 of these Regulations)
  • (vii) The cost of the means of communication by which the contract is to be concluded (e.g. premium rate phonenumbers)
  • (viii) The period for which the terms are available
  • (ix) Minimum duration of the contract, where it is not of one-off performance

This information must be clear and comprehensible.[4] Under reg 8 all this information must also be given in a durable or storable medium along with all terms and conditions, a geographical address and the conditions of taking contractual action where the contract is capable of remaining one year after formation.

Performance of the Contract. The seller must perform the contract within 30 days of formation.[5] If this is not possible, the supplier must reimburse monies or property securing the transaction already transferred (within an additional 30 days) and inform the consumer.[6]

Rights of the consumer

Cancellation. The consumer has an automatic right to cancel and rescind the contract at any time from formation of the contract until seven working days after the goods are delivered; or for service contracts, seven working days after the contract was formed (this may be before the service has been performed).[7]

Where the supplier has not provided the consumer with all the required information, the consumer has an automatic right to rescind the contract within three months and seven days of delivery of the goods, or of formation of the contract (service contracts).[8]

The automatic right does not apply to contracts for:

  • products of fluctuating price.[9]
  • audio or video recordings or computer software if they are unsealed by the consumer[10]
  • supply of periodicals or newspapers[11]
  • Gambling purposes.[12]
  • Customised products.

Effects of Cancellation. reg 14 provides that the supplier shall reimburse the consumer within thirty days of the notice of cancellation being given (including delivery costs). reg 17 provides that the consumer is expected to take reasonable care of goods and deliver them to their door upon collection by the supplier. If the supplier has not tendered the goods within 21 days after notice of cancellation was given, the consumer can treat them as unsolicited goods.[13]

Fraudulent use of a Payment card. reg 21 provides that where a consumer's card is charged fraudulently, those monies are to be reimbursed by the card issuer (bank, etc.).

Unsolicited Goods. Where goods are sent to a consumer (this requirement is redundant here) with no contract stipulating delivery, the "recipient may [...] use, deal with, or dispose of the goods as if they were an unconditional gift to him"[14] and "[t]he rights of the sender to the goods are extinguished"[15]. This is to prevent companies purporting to be entitled to monies whereby an individual receives goods and uses them. Note: this provision merely amends the Unsolicited Goods Act which provided that to be unsolicited goods, they had to be deliberately sent to the recipient with the intention that they used them. Goods sent in error are thus not unsolicited, but remain the property of the sender unless they are actually used.

Extinction of Consumer Rights. No term can limit or exclude the liability of a supplier for the provisions of this act where the term is inconsistent with consumer protection.[16]

Excepted Contracts

(Section 5)

The following are excepted contracts, namely any contract -

(a) for the sale or other disposition of an interest in land except for a rental agreement;

(b) for the construction of a building where the contract also provides for a sale or other disposition of an interest in land on which the building is constructed, except for a rental agreement;

(c) relating to financial services, a non-exhaustive list of which is contained in Schedule 2;

(d) concluded by means of an automated vending machine or automated commercial premises;

(e) concluded with a telecommunications operator through the use of a public pay-phone;

(f) concluded at an auction.

Enforcement of regulations

These Regulation are enforced by the Director-General of Fair Trade and The Office of Fair Trading. Complaints are made directly to the Director-General and The Office of Fair Trading investigates infringements, issues injunctions and litigates on behalf of consumers.

See also

References

  1. ^ Enacted pursuant to European Communities Act 1972
  2. ^ reg 3(1)
  3. ^ reg 3(1).
  4. ^ reg 7(2)
  5. ^ reg 19(1)
  6. ^ reg 19(2)
  7. ^ reg 11(1), reg 12(1)
  8. ^ reg 11(4), reg 12(4)
  9. ^ reg 13(1)(b)
  10. ^ reg 13(1)(d)
  11. ^ reg 13(1)(e)
  12. ^ reg 13(1)(f)
  13. ^ reg 17(7). see Unsolicited Goods and reg 24
  14. ^ reg 24(2)
  15. ^ reg 24(3)
  16. ^ reg 25(1)

External links

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