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Legal
Guidance - Distance Selling Regulations
This
guidance page seeks to give information to healers in England on the legislation connected with the
selling of healing related goods and services by distance within England.
Please
note that I am not a qualified legal practitioner and healers affected by
this legislation should seek professional legal advice as appropriate.
Please
read the introductory guidance on the legislative process in the United Kingdom
and Crown Dependencies before reading this Notice. Click here
to go to the introductory guidance.
The
Consumer Protection (Distance Selling) Regulations 2000 and The Consumer
Protection (Distance Selling) (Amendment) Regulations 2005 are reproduced
below under the terms of Crown
Copyright Policy Guidance issued by HMSO (Her Majesty’s Stationery
Office). Copyright is owned by the
Crown and information on reproduction rights may be found on the HMSO website
at http://www.opsi.gov.uk/advice/crown-copyright/copyright-guidance/reproduction-of-legislation.htm
.
Guidance from the Office
of Fair Trading website on Distance Selling is also reproduced below. Again,
this information is Crown copyright and is reproduced in accordance with the
reproduction permissions.
http://www.oft.gov.uk/advice_and_resources/small_businesses/distance-selling/.
Background
There
has always been the risk that consumers ordering goods and services by distance
means such as mail order do not understand correctly what they might be
buying or could be the subject of some dishonesty or sharp practices by some
sellers. There had been legislation in
place in the UK
for many years to try to provide reasonable consumer protection in such
circumstances. The development of
e-commerce through the internet resulting in higher volumes of selling by
distance and the intention to develop a European Union wide approach to trading
matters led to the issuing of Directive 97/7/EC from the European Parliament
and the Council in May 1997. The Directive required national Parliaments
within the European Union to pass new legislation relating to distance
selling. Here in the UK, the response was the passing
of The Consumer Protection (Distance Selling) Regulations 2000 which replaced
earlier distance selling related legislation. These Regulations were updated
with the passing of The Consumer Protection (Distance Selling) (Amendment)
Regulations 2005.
The
Distance Selling Regulations seek to establish rules within which distance
selling can take place in a way that is reasonably fair to both sellers and
purchasers. The Regulations were drafted in accordance with the wider
principles of consumer protection but obviously could not reflect the nuances
of doing business in every individual business sector. It is necessary,
therefore, for sellers in individual business sectors to be aware of the
existence of the Distance Selling Regulations and to work out how they will
offer the distance selling of goods and services in compliance with the
legislation. This is relevant to healers who offer healing and training
services and the sale of physical products such as crystals, books, oils,
etc., by distance.
The
key requirements of the legislation are that distance sellers need to give
their customers adequate information in the following areas -
the seller’s business identity, full details of the goods and services
for sale, payment arrangements, delivery arrangements, and the rights of
customers to cancel orders. The legislation gives rights to customers to
return goods and to cancel orders.
Immediately
below is guidance from the Office of Fair Trading website on Distance
Selling. Not all the information is relevant to healers but the copyright
reproduction rights require reproduction of all the text. The full text of
the Regulations (both the 2000 and the 2005 legislation) then follow and
everybody who sells by distance should take the time to read these in full
and to take the appropriate legal advice if there is anything that they do
not understand.
For
most of the goods which healers are likely to sell by distance, the Distance
Selling Regulations require the necessary administrative procedures to be put
in place but otherwise do not place any unreasonable burden on the selling
operation.
Compliance
with the Distance Selling Regulations for the provision of distance healing
services requires some careful thought. Given that distance healing is likely
to be needed reasonably quickly and before the expiry of the standard 7 day
‘cooling-off’ period established in the legislation during which the client
can change his/her mind about the purchase, healers should consider having
arrangements in place whereby it can be agreed with clients that the healing
service will be provided before the end of the 7 day ‘cooling-off’ period and
that cancellation under the standard requirements of the legislation will
then not be possible. It would be advisable for healers to refer their
clients to the Distance Selling Regulations so that clients can find out what
their rights are under the legislation.
If
healers offer training by distance, it would be advisable for healers to
review cancellation arrangements and for these to be established in compliance
with the requirements of the legislation.
The Office of Fair Trading Guidance to Distance Sellers
1. What is distance selling?
The regulations cover distance contracts for goods and
services made between suppliers and consumers. Business to
business contracts are not covered. A distance contract is one where
there has been no face to face contact between the consumer and a
representative of your business, or someone acting indirectly on your behalf,
such as in a showroom or a door to door sales person, up to and including the
moment that the contract is concluded.
If you do not usually supply consumers by distance
means, but you agree to do so in response to a one-off request, the
Regulations will not apply to you. However, if your business regularly
handles 'one-off' requests and is organised so that it can deal with such
requests (for example, there is a mail order facility), you will need to
comply with the Regulations.
2. Prior information and written confirmation
Prior information
You must provide clear
and understandable information to enable the consumer to decide whether to
buy. This must include:
·
Your business name
and, if payment is required in advance, your postal address
·
A description of the
goods or services
·
The price including
all taxes
·
Delivery costs where
they apply
·
Arrangements for
payment
·
Arrangements and date
for delivery of goods or performance of services
·
The right to cancel
the order
·
How long the offer or
the price remains valid
·
The cost of any premium
rate telephone, fax or internet charges
·
Whether substitute
goods will be supplied if the order is out of stock or unavailable
·
If substitute goods
will be supplied, in the event of cancellation, you must inform the consumer
of the cost of returning any substitute goods.
·
The minimum duration
for any long-term contract (eg mobile phones).
Written confirmation
When an order has been
made you must provide send the consumer with written confirmation of the
prior information (this can be by letter, fax or e-mail), unless it has
already been provided in writing, for example, in a catalogue or
advertisement.
The confirmation
should also include:
·
When and how the
consumer can exercise the right to cancel
·
Details of whether the
consumer is required to return the goods
·
Information as to
whether you or the consumer would be responsible for the costs of returning
or recovering the goods
·
A geographical address
where the consumer can contact you
·
Details of any
after-sales services and guarantees.
You must provide this
confirmation at the latest by the time the goods are delivered or, in the
case of services, during the performance of the contract.
If you are providing a service with no specified end
date or for a period of more than one year, for example, a mobile phone, or
electricity supply, you must also send details about the conditions for
exercising any contractual right to cancel the contract.
3. Exceptions to the regulations
The regulations do not
apply to:
·
Financial services
·
Sale of land or buildings
·
Purchases from a
vending machine or automated commercial premises
·
The use of a public
pay phone
·
Auctions, including
internet auctions
·
Rental agreements that
have to be in writing (i.e. a lease for three years or more)
There are also some
partial exceptions. The information and cancellation provisions do not apply
to contracts for: accommodation, transport, catering, and leisure services,
including outdoor sporting events, but only where the supplier agrees to
provide these on a specific date or within a specific period. In addition,
the provisions do not apply to package travel, timeshare, and contracts for
the supply of food, drinks or other goods for everyday consumption supplied
by 'regular roundsmen'.
Also the right to
cancel does not apply to the following, unless you agree otherwise:
·
Personalised goods or goods made to a consumer's specification
·
Goods that cannot, by
their nature, be returned
·
Perishable goods (eg flowers, fresh food)
·
Un-sealed audio or
video recordings or computer software
·
Newspapers,
periodicals or magazines
·
Betting, gaming or
lottery services
·
Services that begin,
by agreement, before the end of the cancellation period providing the
supplier has informed the consumer before the conclusion of the contract, in
writing or another durable medium, that he will not be able to cancel once
performance of the services has begun with his agreement
·
Goods or services, the
price of which is dependent on fluctuations in the financial market.
4. Contract performance
You must deliver goods or provide services within 30
days, beginning with the day after the consumer sent an order, unless you
agree otherwise with the consumer. If you are unable to meet the deadline,
you must inform the consumer before the deadline expires and, unless a revised
date is agreed, the consumer must be refunded within a further period of 30
days.
The consumer cannot be obliged to agree to a revised
date. If he or she does not, then the contract is thereby cancelled and any
money paid must be returned within 30 days.
If you wish to provide substitute goods or services,
then this must have been made clear in the prior information received by the
consumer before entering the contract.
Inertia selling
The regulations amend the Unsolicited Goods and
Services Act 1971 and the Unsolicited Goods and Services (Northern Ireland) Order 1976 to
remove any rights of the sender in respect of unsolicited goods and services
and any obligations on the consumer.
As such, consumers can retain unsolicited goods or
dispose of them as they wish. They are under no obligation to keep them safe
or to return them to you. It is an offence for you to demand payment from
consumers for unsolicited goods or services.
5. Cancellation periods
The regulations give consumers an unconditional right
to cancel an order. This is to allow the consumer the opportunity to examine
the goods or consider the nature of a service.
If a consumer cancels an order, written notice must be
given to you by:
Goods – seven working days from the day after that on
which the goods are received by the consumer;
Services – seven working days from the day after that
on which the consumer agrees to go ahead with the contract.
If you fail to provide consumers with written
confirmation of all the required information, then the cancellation periods
can be extended up to a maximum of three months and seven working days. If
the missing information is provided during this time, then the cancellation
period ends seven working days beginning with the day after the full written
confirmation is received by the consumer.
Where a contract is cancelled, the consumer must ensure
that reasonable care is taken of any goods received and 'restore' them to
you. This does not mean that they have to return them - unless you stipulate
this in the contract - only that they make them available for you to collect.
You must refund the consumer's money as soon as
possible and, at the latest, within 30 days of receiving the written notice
of cancellation. The consumer may, at your discretion, be charged the direct
cost of returning the goods, but you must tell them about this in the written
information you give them.
If payment for the goods or services is under a related
credit agreement, the consumer's cancellation notice also has the effect of cancelling the credit agreement.
6. Enforcement
These regulations are enforced by the Office of Fair
Trading, local authority trading standards departments in England, Scotland
and Wales and the
Department of Trade, Enterprise and Investment
in Northern Ireland.
These bodies are under a duty to consider any complaint received and have
powers to apply to the courts for an injunction against any person who is
considered responsible for a breach of the regulations.
The
Office of Fair Trading and the Department of Trade and Industry issued
guidelines on the Distance Selling Regulations in September 2006. These
guidelines represent the interpretation of the Distance Selling Regulations
legislation by the OFT and DTI and do not represent the law itself. However,
the Director of Fair Trading at the OFT is the main enforcement officer for
the legislation so the guidelines which he has issued obviously have value.
They may be found on the following webpage:
http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf
Reproduction of the legislation
STATUTORY
INSTRUMENTS
2000 No. 2334
CONSUMER PROTECTION
The Consumer Protection (Distance Selling) Regulations
2000
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Made
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31st August 2000
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Laid before
Parliament
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1st September 2000
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Coming into force
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31st October 2000
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The Secretary of State, being a Minister designated[1] for the
purposes of section 2(2) of the European Communities Act 1972[2]
in relation to matters relating to consumer protection, in exercise of the
powers conferred on him by section 2(2) of that Act, hereby makes the
following Regulations: -
Title, commencement and extent
1.
- (1) These Regulations may be cited as the Consumer Protection
(Distance Selling) Regulations 2000 and shall come into force on 31st October
2000.
(2) These Regulations extend to Northern Ireland.
Revocation
2. The Mail Order Transactions (Information) Order 1976[3] is hereby revoked.
Interpretation
3.
- (1) In these Regulations -
"breach"
means contravention by a supplier of a prohibition in, or failure to comply
with a requirement of, these Regulations;
"business"
includes a trade or profession;
"consumer"
means any natural person who, in contracts to which these Regulations apply,
is acting for purposes which are outside his business;
"court"
in relation to England and
Wales and Northern Ireland means a county court or the
High Court, and in relation to Scotland means the Sheriff Court or
the Court of Session;
"credit"
includes a cash loan and any other form of financial accommodation, and for
this purpose "cash" includes money in any form;
"Director"
means the Director General of Fair Trading;
"distance
contract" means any contract concerning goods or services concluded
between a supplier and a consumer under an organised distance sales or
service provision scheme run by the supplier who, for the purpose of the
contract, makes exclusive use of one or more means of distance communication
up to and including the moment at which the contract is concluded;
"EEA
Agreement" means the Agreement on the European Economic Area signed at Oporto on 2 May 1992 as
adjusted by the Protocol signed at Brussels
on 17 March 1993[4];
"enactment"
includes an enactment comprised in, or in an instrument made under, an Act of
the Scottish Parliament;
"enforcement
authority" means the Director, every weights and measures authority in Great Britain, and the Department of
Enterprise, Trade and Investment in Northern Ireland;
"excepted
contract" means a contract such as is mentioned in regulation 5(1);
"means of distance
communication" means any means which, without the simultaneous physical
presence of the supplier and the consumer, may be used for the conclusion of
a contract between those parties; and an indicative list of such means is
contained in Schedule 1;
"Member State"
means a State which is a contracting party to the EEA Agreement;
"operator of a means
of communication" means any public or private person whose business
involves making one or more means of distance communication available to
suppliers;
"period for
performance" has the meaning given by regulation 19(2);
"personal credit
agreement" has the meaning given by regulation 14(8);
"related credit
agreement" has the meaning given by regulation 15(5);
"supplier" means
any person who, in contracts to which these Regulations apply, is acting in
his commercial or professional capacity; and
"working
days" means all days other than Saturdays, Sundays and public holidays.
(2) In the application of
these Regulations to Scotland,
for references to an "injunction" or an "interim
injunction" there shall be substituted references to an
"interdict" or an "interim interdict" respectively.
Contracts to which these Regulations
apply
4.
These Regulations apply, subject to regulation 6, to distance contracts other
than excepted contracts.
Excepted contracts
5. - (1) 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.
(2)
References in paragraph (1) to a rental agreement -
(a) if the land is
situated in England and Wales, are references to any agreement which does not
have to be made in writing (whether or not in fact made in writing) because
of section 2(5)(a) of the Law of Property (Miscellaneous Provisions) Act
1989[5];
(b) if the land is situated in Scotland, are references to any agreement for
the creation, transfer, variation or extinction of an interest in land, which
does not have to be made in writing (whether or not in fact made in writing)
as provided for in section 1(2) and (7) of the Requirements of Writing
(Scotland) Act 1995[6]; and
(c) if the land is situated in Northern Ireland, are references to any
agreement which is not one to which section II of the Statute of Frauds,
(Ireland) 1695[7] applies.
(3) Paragraph (2) shall not
be taken to mean that a rental agreement in respect of land situated outside
the United Kingdom is not capable of being a distance contract to which these
Regulations apply.
Contracts to which only part of these
Regulations apply
6.
- (1) Regulations 7 to 20 shall not apply to a contract which is a
"timeshare agreement" within the meaning of the Timeshare Act 1992[8] and to which that Act applies.
(2) Regulations 7 to 19(1) shall not apply
to -
(a) contracts for the supply of food,
beverages or other goods intended for everyday consumption supplied to the
consumer's residence or to his workplace by regular roundsmen;
or
(b) contracts for the provision of accommodation, transport, catering or
leisure services, where the supplier undertakes, when the contract is
concluded, to provide these services on a specific date or within a specific
period.
(3) Regulations 19(2) to
(8) and 20 do not apply to a contract for a "package" within the
meaning of the Package Travel, Package Holidays and Package Tours Regulations
1992[9] which is sold or offered for sale in the territory of
the Member States.
Information required prior to the
conclusion of the contract
7.
- (1) Subject to paragraph (4), in good time prior to the
conclusion of the contract the supplier shall -
(a) provide to the
consumer the following information -
(i)
the identity of the supplier and, where the contract requires payment in
advance, the supplier's address;
(ii) a description of the main characteristics of the goods or services;
(iii) the price of the goods or services including all taxes;
(iv) delivery costs where appropriate;
(v) the arrangements for payment, delivery or performance;
(vi) the existence of a right of cancellation except in the cases referred to
in regulation 13;
(vii) the cost of using the means of distance communication where it is
calculated other than at the basic rate;
(viii) the period for which the offer or the price remains valid; and
(ix) where appropriate, the minimum duration of the contract, in the case of
contracts for the supply of goods or services to be performed permanently or
recurrently;
(b) inform the consumer if
he proposes, in the event of the goods or services ordered by the consumer
being unavailable, to provide substitute goods or services (as the case may
be) of equivalent quality and price; and
(c) inform the consumer that the cost of returning any such substitute goods
to the supplier in the event of cancellation by the consumer would be met by
the supplier.
(2)
The supplier shall ensure that the information required by paragraph (1) is
provided in a clear and comprehensible manner appropriate to the means of
distance communication used, with due regard in particular to the principles
of good faith in commercial transactions and the principles governing the
protection of those who are unable to give their consent such as minors.
(3) Subject to paragraph (4), the supplier shall
ensure that his commercial purpose is made clear when providing the
information required by paragraph (1).
(4) In the case of a telephone communication, the
identity of the supplier and the commercial purpose of the call shall be made
clear at the beginning of the conversation with the consumer.
Written and additional information
8. - (1) Subject to regulation
9, the supplier shall provide to the consumer in writing, or in another
durable medium which is available and accessible to the consumer, the
information referred to in paragraph (2), either -
(a) prior to the
conclusion of the contract, or
(b) thereafter, in good time and in any event -
(i)
during the performance of the contract, in the case
of services; and
(ii) at the latest at the time of delivery where goods not for delivery to
third parties are concerned.
(2)
The information required to be provided by paragraph (1) is -
(a) the information set
out in paragraphs (i) to (vi) of Regulation
7(1)(a);
(b) information about the conditions and procedures for exercising the right
to cancel under regulation 10, including -
(i)
where a term of the contract requires (or the supplier intends that it will
require) that the consumer shall return the goods to the supplier in the
event of cancellation, notification of that requirement; and
(ii) information as to whether the consumer or the supplier would be
responsible under these Regulations for the cost of returning any goods to
the supplier, or the cost of his recovering them, if the consumer cancels the
contract under regulation 10;
(c) the geographical
address of the place of business of the supplier to which the consumer may
address any complaints;
(d) information about any after-sales services and guarantees; and
(e) the conditions for exercising any contractual right to cancel the
contract, where the contract is of an unspecified duration or a duration
exceeding one year.
(3)
Subject to regulation 9, prior to the conclusion of a contract for the supply
of services, the supplier shall inform the consumer in writing or in another
durable medium which is available and accessible to the consumer that, unless
the parties agree otherwise, he will not be able to cancel the contract under
regulation 10 once the performance of the services has begun with his
agreement.
Services performed through the use of
a means of distance communication
9. - (1) Regulation 8 shall not
apply to a contract for the supply of services which are performed through
the use of a means of distance communication, where those services are
supplied on only one occasion and are invoiced by the operator of the means
of distance communication.
(2) But the supplier shall take all necessary steps
to ensure that a consumer who is a party to a contract to which paragraph (1)
applies is able to obtain the supplier's geographical address and the place
of business to which the consumer may address any complaints.
Right to cancel
10. - (1) Subject to regulation
13, if within the cancellation period set out in regulations 11 and 12, the
consumer gives a notice of cancellation to the supplier, or any other person
previously notified by the supplier to the consumer as a person to whom
notice of cancellation may be given, the notice of cancellation shall operate
to cancel the contract.
(2) Except as otherwise provided by these
Regulations, the effect of a notice of cancellation is that the contract
shall be treated as if it had not been made.
(3) For the purposes of these Regulations, a notice
of cancellation is a notice in writing or in another durable medium available
and accessible to the supplier (or to the other person to whom it is given)
which, however expressed, indicates the intention of the consumer to cancel
the contract.
(4) A notice of cancellation given under this
regulation by a consumer to a supplier or other person is to be treated as
having been properly given if the consumer -
(a) leaves it at the
address last known to the consumer and addressed to the supplier or other
person by name (in which case it is to be taken to have been given on the day
on which it was left);
(b) sends it by post to the address last known to the consumer and addressed
to the supplier or other person by name (in which case, it is to be taken to
have been given on the day on which it was posted);
(c) sends it by facsimile to the business facsimile number last known to the
consumer (in which case it is to be taken to have been given on the day on
which it is sent); or
(d) sends it by electronic mail, to the business electronic mail address last
known to the consumer (in which case it is to be taken to have been given on
the day on which it is sent).
(5)
Where a consumer gives a notice in accordance with paragraph (4)(a) or (b) to
a supplier who is a body corporate or a partnership, the notice is to be
treated as having been properly given if -
(a) in the case of a body
corporate, it is left at the address of, or sent to, the secretary or clerk
of that body; or
(b) in the case of a partnership, it is left with or sent to a partner or a
person having control or management of the partnership business.
Cancellation period in the case of contracts for
the supply of goods
11. - (1) For the purposes of
regulation 10, the cancellation period in the case of contracts for the
supply of goods begins with the day on which the contract is concluded and
ends as provided in paragraphs (2) to (5).
(2) Where the supplier complies with regulation 8,
the cancellation period ends on the expiry of the period of seven working
days beginning with the day after the day on which the consumer receives the
goods.
(3) Where a supplier who has not complied with
regulation 8 provides to the consumer the information referred to in
regulation 8(2), and does so in writing or in another durable medium
available and accessible to the consumer, within the period of three months
beginning with the day after the day on which the consumer receives the
goods, the cancellation period ends on the expiry of the period of seven
working days beginning with the day after the day on which the consumer
receives the information.
(4) Where neither paragraph (2) nor (3) applies, the
cancellation period ends on the expiry of the period of three months and
seven working days beginning with the day after the day on which the consumer
receives the goods.
(5) In the case of contracts for goods for delivery
to third parties, paragraphs (2) to (4) shall apply as if the consumer had
received the goods on the day on which they were received by the third party.
Cancellation period in the case of
contracts for the supply of services
12. - (1) For the purposes of
regulation 10, the cancellation period in the case of contracts for the
supply of services begins with the day on which the contract is concluded and
ends as provided in paragraphs (2) to (4).
(2) Where the supplier complies with regulation 8 on
or before the day on which the contract is concluded, the cancellation period
ends on the expiry of the period of seven working days beginning with the day
after the day on which the contract is concluded.
(3) Where a supplier who has not complied with
regulation 8 on or before the day on which the contract is concluded provides
to the consumer the information referred to in regulation 8(2) and (3), and
does so in writing or in another durable medium available and accessible to
the consumer, within the period of three months beginning with the day after
the day on which the contract is concluded, the cancellation period ends on
the expiry of the period of seven working days beginning with the day after
the day on which the consumer receives the information.
(4) Where neither paragraph (2) nor (3) applies, the
cancellation period ends on the expiry of the period of three months and
seven working days beginning with the day after the day on which the contract
is concluded.
Exceptions to the right to cancel
13. - (1) Unless the parties
have agreed otherwise, the consumer will not have the right to cancel the
contract by giving notice of cancellation pursuant to regulation 10 in
respect of contracts -
(a) for the supply of
services if the supplier has complied with regulation 8(3) and performance of
the contract has begun with the consumer's agreement before the end of the
cancellation period applicable under regulation 12;
(b) for the supply of goods or services the price of which is dependent on
fluctuations in the financial market which cannot be controlled by the
supplier;
(c) for the supply of goods made to the consumer's specifications or clearly personalised or which by reason of their nature cannot be
returned or are liable to deteriorate or expire rapidly;
(d) for the supply of audio or video recordings or computer software if they
are unsealed by the consumer;
(e) for the supply of newspapers, periodicals or magazines; or
(f) for gaming, betting or lottery services.
Recovery of sums paid by or on behalf of the
consumer on cancellation, and return of security
14. - (1) On the cancellation of
a contract under regulation 10, the supplier shall reimburse any sum paid by
or on behalf of the consumer under or in relation to the contract to the
person by whom it was made free of any charge, less any charge made in accordance
with paragraph (5).
(2) The reference in paragraph (1) to any sum paid on
behalf of the consumer includes any sum paid by a creditor who is not the
same person as the supplier under a personal credit agreement with the
consumer.
(3) The supplier shall make the reimbursement
referred to in paragraph (1) as soon as possible and in any case within a
period not exceeding 30 days beginning with the day on which the notice of
cancellation was given.
(4) Where any security has been provided in relation
to the contract, the security (so far as it is so provided) shall, on
cancellation under regulation 10, be treated as never having had effect and
any property lodged with the supplier solely for the purposes of the security
as so provided shall be returned by him forthwith.
(5) Subject to paragraphs (6) and (7), the supplier
may make a charge, not exceeding the direct costs of recovering any goods
supplied under the contract, where a term of the contract provides that the
consumer must return any goods supplied if he cancels the contract under
regulation 10 but the consumer does not comply with this provision or returns
the goods at the expense of the supplier.
(6) Paragraph (5) shall not apply where -
(a) the consumer cancels
in circumstances where he has the right to reject the goods under a term of
the contract, including a term implied by virtue of any enactment, or
(b) the term requiring the consumer to return any goods supplied if he
cancels the contract is an "unfair term" within the meaning of the
Unfair Terms in Consumer Contracts Regulations 1999[10].
(7) Paragraph (5) shall not
apply to the cost of recovering any goods which were supplied as substitutes
for the goods ordered by the consumer.
(8) For the purposes of these Regulations, a personal
credit agreement is an agreement between the consumer and any other person
("the creditor") by which the creditor provides the consumer with
credit of any amount.
Automatic cancellation of a related
credit agreement
15.
- (1) Where a notice of cancellation is given under regulation 10
which has the effect of cancelling the contract, the
giving of the notice shall also have the effect of cancelling
any related credit agreement.
(2) Where a related credit agreement is cancelled by
virtue of paragraph (1), the supplier shall, if he is not the same person as
the creditor under that agreement, forthwith on receipt of the notice of
cancellation inform the creditor that the notice has been given.
(3) Where a related credit agreement is cancelled by
virtue of paragraph (1) -
(a) any sum paid by or on
behalf of the consumer under, or in relation to, the credit agreement which
the supplier is not obliged to reimburse under regulation 14(1) shall be
reimbursed, except for any sum which, if it had not already been paid, would
have to be paid under subparagraph (b);
(b) the agreement shall continue in force so far as it relates to repayment
of the credit and payment of interest, subject to regulation 16; and
(c) subject to subparagraph (b), the agreement shall cease to be enforceable.
(4)
Where any security has been provided under a related credit agreement, the
security, so far as it is so provided, shall be treated as never having had
effect and any property lodged with the creditor solely for the purposes of
the security as so provided shall be returned by him forthwith.
(5) For the purposes of this regulation and
regulation 16, a "related credit agreement" means an agreement
under which fixed sum credit which fully or partly covers the price under a
contract cancelled under regulation 10 is granted -
(a) by
the supplier, or
(b) by another person, under an arrangement between that person and the
supplier.
(6)
For the purposes of this regulation and regulation 16 -
(a) "creditor"
is a person who grants credit under a related credit agreement;
(b) "fixed sum credit" has the same meaning as in section 10 of the
Consumer Credit Act 1974[11];
(c) "repayment" in relation to credit means repayment of money
received by the consumer, and cognate expressions shall be construed
accordingly; and
(d) "interest" means interest on money so received.
Repayment
of credit and interest after cancellation of a related credit agreement
16.
- (1) This regulation applies following the cancellation of a
related credit agreement by virtue of regulation 15(1).
(2) If the consumer repays the whole or a portion of
the credit -
(a) before the expiry of
one month following the cancellation of the credit agreement, or
(b) in the case of a credit repayable by instalments,
before the date on which the first instalment is
due,
no interest shall be payable on the amount
repaid.
(3) If the whole of a credit repayable by instalments is not repaid on or before the date referred
to in paragraph (2)(b), the consumer shall not be
liable to repay any of the credit except on receipt of a request in writing,
signed by the creditor, stating the amounts of the remaining instalments (recalculated by the creditor as nearly as
may be in accordance with the agreement and without extending the repayment
period), but excluding any sum other than principal and interest.
(4) Where any security has been provided under a
related credit agreement the duty imposed on the consumer to repay credit and
to pay interest shall not be enforceable before the creditor has discharged
any duty imposed on him by regulation 15(4) to return any property lodged
with him as security on cancellation.
Restoration of goods by consumer
after cancellation
17. - (1) This regulation
applies where a contract is cancelled under regulation 10 after the consumer
has acquired possession of any goods under the contract other than any goods
mentioned in regulation 13(1)(b) to (e).
(2) The consumer shall be treated as having been
under a duty throughout the period prior to cancellation -
(a) to
retain possession of the goods, and
(b) to take reasonable care of them.
(3)
On cancellation, the consumer shall be under a duty to restore the goods to
the supplier in accordance with this regulation, and in the meanwhile to
retain possession of the goods and take reasonable care of them.
(4) The consumer shall not be under any duty to
deliver the goods except at his own premises and in pursuance of a request in
writing, or in another durable medium available and accessible to the
consumer, from the supplier and given to the consumer either before, or at
the time when, the goods are collected from those premises.
(5) If the consumer -
(a) delivers the goods
(whether at his own premises or elsewhere) to any person to whom, under
regulation 10(1), a notice of cancellation could have been given; or
(b) sends the goods at his own expense to such a person,
he shall be discharged from any duty to
retain possession of the goods or restore them to the supplier.
(6) Where the consumer delivers the goods in
accordance with paragraph (5)(a), his obligation to
take care of the goods shall cease; and if he sends the goods in accordance
with paragraph (5)(b), he shall be under a duty to take reasonable care to
see that they are received by the supplier and not damaged in transit, but in
other respects his duty to take care of the goods shall cease when he sends
them.
(7) Where, at any time during the period of 21 days
beginning with the day notice of cancellation was given, the consumer
receives such a request as is mentioned in paragraph (4), and unreasonably
refuses or unreasonably fails to comply with it, his duty to retain
possession and take reasonable care of the goods shall continue until he
delivers or sends the goods as mentioned in paragraph (5), but if within that
period he does not receive such a request his duty to take reasonable care of
the goods shall cease at the end of that period.
(8) Where -
(a) a term of the contract
provides that if the consumer cancels the contract, he must return the goods
to the supplier, and
(b) the consumer is not otherwise entitled to reject the goods under the
terms of the contract or by virtue of any enactment,
paragraph (7) shall apply as if for the period of
21 days there were substituted the period of 6 months.
(9) Where any security has been provided in relation
to the cancelled contract, the duty to restore goods imposed on the consumer
by this regulation shall not be enforceable before the supplier has
discharged any duty imposed on him by regulation 14(4) to return any property
lodged with him as security on cancellation.
(10) Breach of a duty imposed by this regulation on a
consumer is actionable as a breach of statutory duty.
Goods given in part-exchange
18. - (1) This regulation
applies on the cancellation of a contract under regulation 10 where the
supplier agreed to take goods in part-exchange (the "part-exchange
goods") and those goods have been delivered to him.
(2) Unless, before the end of the period of 10 days
beginning with the date of cancellation, the part-exchange goods are returned
to the consumer in a condition substantially as good as when they were
delivered to the supplier, the consumer shall be entitled to recover from the
supplier a sum equal to the part-exchange allowance.
(3) In this regulation the part-exchange allowance
means the sum agreed as such in the cancelled contract, or if no such sum was
agreed, such sum as it would have been reasonable to allow in respect of the
part-exchange goods if no notice of cancellation had been served.
(4) Where the consumer recovers from the supplier a
sum equal to the part-exchange allowance, the title of the consumer to the
part-exchange goods shall vest in the supplier (if it has not already done
so) on recovery of that sum.
Performance
19. - (1) Unless the parties
agree otherwise, the supplier shall perform the contract within a maximum of
30 days beginning with the day after the day the consumer sent his order to
the supplier.
(2) Subject to paragraphs (7) and (8), where the
supplier is unable to perform the contract because the goods or services
ordered are not available, within the period for performance referred to in
paragraph (1) or such other period as the parties agree ("the period for
performance"), he shall -
(a) inform
the consumer; and
(b) reimburse any sum paid by or on behalf of the consumer under or in
relation to the contract to the person by whom it was made.
(3)
The reference in paragraph (2)(b) to any sum paid on
behalf of the consumer includes any sum paid by a creditor who is not the
same person as the supplier under a personal credit agreement with the
consumer.
(4) The supplier shall make the reimbursement
referred to in paragraph (2)(b) as soon as possible
and in any event within a period of 30 days beginning with the day after the
day on which the period for performance expired.
(5) A contract which has not been performed within
the period for performance shall be treated as if it had not been made, save
for any rights or remedies which the consumer has under it as a result of the
non-performance.
(6) Where any security has been provided in relation
to the contract, the security (so far as it is so provided) shall, where the
supplier is unable to perform the contract within the period for performance,
be treated as never having had any effect and any property lodged with the
supplier solely for the purposes of the security as so provided shall be
returned by him forthwith.
(7) Where the supplier is unable to supply the goods
or services ordered by the consumer, the supplier may perform the contract
for the purposes of these Regulations by providing substitute goods or services
(as the case may be) of equivalent quality and price provided
that -
(a) this possibility was
provided for in the contract;
(b) prior to the conclusion of the contract the supplier gave the consumer
the information required by regulation 7(1)(b) and (c) in the manner required
by regulation 7(2).
(8)
In the case of outdoor leisure events which by their nature cannot be
rescheduled, paragraph 2(b) shall not apply where the consumer and the
supplier so agree.
Effect of non-performance on related
credit agreement
20. Where a supplier is unable to perform
the contract within the period for performance -
(a) regulations 15 and 16
shall apply to any related credit agreement as if the consumer had given a
valid notice of cancellation under regulation 10 on the expiry of the period
for performance; and
(b) the reference in regulation 15(3)(a) to regulation 14(1) shall be read,
for the purposes of this regulation, as a reference to regulation 19(2).
Payment by card
21. - (1) Subject to paragraph
(4), the consumer shall be entitled to cancel a payment where fraudulent use
has been made of his payment card in connection with a contract to which this
regulation applies by another person not acting, or to be treated as acting,
as his agent.
(2) Subject to paragraph (4), the consumer shall be
entitled to be recredited, or to have all sums
returned by the card issuer, in the event of fraudulent use of his payment
card in connection with a contract to which this regulation applies by
another person not acting, or to be treated as acting, as the consumer's
agent.
(3) Where paragraphs (1) and (2) apply, in any
proceedings if the consumer alleges that any use made of the payment card was
not authorised by him it is for the card issuer to
prove that the use was so authorised.
(4) Paragraphs (1) and (2) shall not apply to an
agreement to which section 83(1) of the Consumer Credit Act 1974 applies.
(5) Section 84 of the Consumer Credit Act 1974
(misuse of credit-tokens) is amended by the insertion after subsection (3)
of -
" (3A) Subsections (1) and (2) shall not apply to any
use, in connection with a distance contract (other than an excepted
contract), of a card which is a credit-token.
(3B) In subsection (3A), "distance
contract" and "excepted contract" have the meanings given in
the Consumer Protection (Distance Selling) Regulations 2000."
(6)
For the purposes of this regulation -
"card
issuer" means the owner of the card; and
"payment card" includes credit cards, charge cards,
debit cards and store cards.
Amendments to the Unsolicited Goods and Services
Act 1971
22. - (1) The Unsolicited Goods
and Services Act 1971[12] is amended as follows.
(2) Omit section 1 (rights of recipient of
unsolicited goods).
(3) In subsection (1) of section 2 (demands and
threats regarding payment), after "them" insert "for the
purposes of his trade or business".
(4) The amendments made by this regulation apply only
in relation to goods sent after the date on which it comes into force.
Amendments to the Unsolicited Goods
and Services (Northern
Ireland) Order 1976
23.
- (1) The Unsolicited Goods and Services (Northern Ireland) Order 1976[13] is amended as
follows.
(2) Omit Article 3 (rights of recipient of unsolicited
goods).
(3) In paragraph (1) of Article 4 (demands and
threats regarding payment), after "them" insert "for the
purposes of his trade or business".
(4) The amendments made by this regulation apply only
in relation to goods sent after the date on which it comes into force.
Inertia Selling
24.
- (1) Paragraphs (2) and (3) apply if -
(a) unsolicited
goods are sent to a person ("the recipient") with a view to his
acquiring them;
(b) the recipient has no reasonable cause to believe that they were sent with
a view to their being acquired for the purposes of a business; and
(c) the recipient has neither agreed to acquire nor agreed to return them.
(2)
The recipient may, as between himself and the
sender, use, deal with or dispose of the goods as if they were an
unconditional gift to him.
(3) The rights of the sender to the goods are
extinguished.
(4) A person who, not having reasonable cause to
believe there is a right to payment, in the course of any business makes a
demand for payment, or asserts a present or prospective right to payment, for
what he knows are -
(a) unsolicited goods sent
to another person with a view to his acquiring them for purposes other than
those of his business, or
(b) unsolicited services supplied to another person for purposes other than
those of his business,
is guilty of an offence and liable, on
summary conviction, to a fine not exceeding level 4 on the standard scale.
(5) A person who, not having reasonable cause to
believe there is a right to payment, in the course of any business and with a
view to obtaining payment for what he knows are unsolicited goods sent or
services supplied as mentioned in paragraph (4) -
(a) threatens to bring any
legal proceedings, or
(b) places or causes to be placed the name of any person on a list of
defaulters or debtors or threatens to do so, or
(c) invokes or causes to be invoked any other collection procedure or
threatens to do so,
is guilty of an offence and liable, on
summary conviction, to a fine not exceeding level 5 on the standard scale.
(6) In this regulation -
"acquire"
includes hire;
"send"
includes deliver;
"sender",
in relation to any goods, includes -
(a) any person on whose
behalf or with whose consent the goods are sent;
(b) any other person claiming through or under the sender or any person
mentioned in paragraph (a); and
(c) any person who delivers the goods; and
"unsolicited" means, in relation to goods sent or
services supplied to any person, that they are sent or supplied without any
prior request made by or on behalf of the recipient.
(7)
For the purposes of this regulation, an invoice or similar document
which -
(a) states the amount of a
payment, and
(b) fails to comply with the requirements of regulations made under section 3A
of the Unsolicited Goods and Services Act 1971 or, as the case may be,
Article 6 of the Unsolicited Goods and Services (Northern Ireland) Order 1976
applicable to it,
is to be regarded as asserting a right to
the payment.
(8) Section 3A of the Unsolicited Goods and Services
Act 1971 applies for the purposes of this regulation in its application to England, Wales
and Scotland
as it applies for the purposes of that Act.
(9) Article 6 of the Unsolicited Goods and Services (Northern Ireland) Order 1976 applies for the
purposes of this regulation in its application to Northern Ireland as it applies
for the purposes of that Order.
(10) This regulation applies only to goods sent and
services supplied after the date on which it comes into force.
No contracting-out
25. - (1) A term contained in
any contract to which these Regulations apply is void if, and to the extent
that, it is inconsistent with a provision for the protection of the consumer
contained in these Regulations.
(2) Where a provision of these Regulations specifies
a duty or liability of the consumer in certain circumstances, a term
contained in a contract to which these Regulations apply, other than a term
to which paragraph (3) applies, is inconsistent with that provision if it
purports to impose, directly or indirectly, an additional duty or liability
on him in those circumstances.
(3) This paragraph applies to a term which requires
the consumer to return any goods supplied to him under the contract if he
cancels it under regulation 10.
(4) A term to which paragraph (3) applies shall, in
the event of cancellation by the consumer under regulation 10, have effect
only for the purposes of regulation 14(5) and 17(8).
(5) These Regulations shall apply notwithstanding any
contract term which applies or purports to apply the law of a non-Member State
if the contract has a close connection with the territory of a Member State.
Consideration of complaints
26. - (1) It shall be the duty
of an enforcement authority to consider any complaint made to it about a
breach unless -
(a) the
complaint appears to the authority to be frivolous or vexatious; or
(b) another enforcement authority has notified the Director that it agrees to
consider the complaint.
(2)
If an enforcement authority notifies the Director that it agrees to consider
a complaint made to another enforcement authority, the first mentioned
authority shall be under a duty to consider the complaint.
(3) An enforcement authority which is under a duty to
consider a complaint shall give reasons for its decision to apply or not to
apply, as the case may be, for an injunction under regulation 27.
(4) In deciding whether or not to apply for an
injunction in respect of a breach an enforcement authority may, if it
considers it appropriate to do so, have regard to any undertaking given to it
or another enforcement authority by or on behalf of any person as to
compliance with these Regulations.
Injunctions to secure compliance with
these Regulations
27. - (1) The Director or,
subject to paragraph (2), any other enforcement authority may apply for an
injunction (including an interim injunction) against any person who appears
to the Director or that authority to be responsible for a breach.
(2) An enforcement authority other than the Director
may apply for an injunction only where -
(a) it has notified the
Director of its intention to apply at least fourteen days before the date on
which the application is to be made, beginning with the date on which the
notification was given; or
(b) the Director consents to the application being made within a shorter
period.
(3)
The court on an application under this regulation may grant an injunction on
such terms as it thinks fit to secure compliance with these Regulations.
Notification of undertakings and
orders to the Director
28. An enforcement authority other than the
Director shall notify the Director -
(a) of any undertaking
given to it by or on behalf of any person who appears to it to be responsible
for a breach;
(b) of the outcome of any application made by it under regulation 27 and of
the terms of any undertaking given to or order made by the court;
(c) of the outcome of any application made by it to enforce a previous order
of the court.
Publication, information and advice
29. - (1) The Director shall
arrange for the publication in such form and manner as he considers
appropriate of -
(a) details of any
undertaking or order notified to him under regulation 28;
(b) details of any undertaking given to him by or on behalf of any person as
to compliance with these Regulations;
(c) details of any application made by him under regulation 27, and of the
terms of any undertaking given to, or order made by, the court;
(d) details of any application made by the Director to enforce a previous
order of the court.
(2)
The Director may arrange for the dissemination in such form and manner as he
considers appropriate of such information and advice concerning the operation
of these Regulations as it may appear to him to be expedient to give to the
public and to all persons likely to be affected by these Regulations.
Helen Liddell
Minister of State, Department of Trade and Industry
31st August 2000
SCHEDULE 1
Regulation 3
Indicative
list of means of distance communication
1.
Unaddressed printed matter.
2.
Addressed printed matter.
3.
Letter.
4.
Press advertising with order form.
5.
Catalogue.
6.
Telephone with human intervention.
7.
Telephone without human intervention (automatic calling machine, audiotext).
8.
Radio.
9.
Videophone (telephone with screen).
10.
Videotext (microcomputer and television screen) with keyboard or touch
screen.
11.
Electronic mail.
12.
Facsimile machine (fax).
13.
Television (teleshopping).
SCHEDULE 2
Regulation 5(1)(c)
Non-exhaustive
list of financial services
1.
Investment services.
2.
Insurance and reinsurance operations.
3.
Banking services.
4.
Services relating to dealings in futures or options.
Such services include in particular:
-
investment services referred to in the Annex to Directive 93/22/EEC[14]; services of collective investment
undertakings;
- services
covered by the activities subject to mutual recognition referred to in the
Annex to Directive 89/846/EEC[15];
- operations
covered by the insurance and reinsurance activities referred to in:
- Article 1 of Directive 73/239/EEC[16];
- the Annex to Directive 79/267/EEC[17];
- Directive 64/225/EEC[18];
- Directives 92/49/EEC[19] and 92/96/EEC[20].
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations implement Directive 97/7/EC of the European Parliament and
the Council of 20 May 1997 (O.J. No. L144, 4.6.97, p.19) on the protection of
consumers in relation to distance contracts, with the exception of Article
10.
The Regulations apply to contracts for goods or services to be supplied to a
consumer where the contract is made exclusively by means of distance communication, that is any means used without the
simultaneous physical presence of the consumer and the supplier (regulations
3 and 4). Schedule 1 contains an indicative list of means of distance
communication.
The Regulations do not apply to those distance contracts excluded by
regulation 5(1), such as contracts relating to the supply of financial
services.
The Regulations have limited application to contracts for the supply of
groceries by regular delivery and contracts for the provision of
accommodation, transport, catering or leisure services (regulation 6).
The Regulations require the supplier to provide the consumer with the
information referred to in regulation 7 prior to the conclusion of the
contract. This includes information on the right to cancel the distance
contract, the main characteristics of the goods or services, and delivery
costs where appropriate.
Regulation 8 requires the supplier to confirm in writing, or another durable
medium which is available and accessible to the consumer, information already
given and to give some additional information, including information on the
conditions and procedures relating to the exercise of the right to cancel the
contract. Regulation 8(3) requires the supplier to inform the consumer prior
to conclusion of a contract for services that he will not be able to cancel
once performance of the service has begun with his agreement.
Where the Regulations apply, they provide a "cooling off period" to
enable the consumer to cancel the contract by giving notice of cancellation
to the supplier. The effect of giving notice of cancellation under the
Regulations is that the contract is treated as if it had not been made.
Where the supplier supplies the information to the consumer on time, the
cooling-off period is 7 working days from the day after the date of the
contract, in the case of services, or from the day after the date of delivery
of the goods.
Where the supplier fails to comply with the information requirement at all,
the cooling-off period is extended by 3 months.
Where the supplier complies with the information requirement later than he
should have done but within 3 months the cooling-off begins from the date he
provided the information (regulations 10-12).
Certain contracts are excluded from the right to cancel unless the parties
agree otherwise, such as a contract for the supply of goods made to the
consumer's specifications (regulation 13).
If the consumer cancels, the consumer must be reimbursed within a maximum
period of 30 days (regulation 14). Where the consumer cancels the contract,
any related credit agreement is automatically cancelled (regulation 15).
Regulation 17 provides that on cancellation of the contract the consumer is
under a duty to restore goods to the supplier if he collects them and in the
meantime to take reasonable care of them. The Regulations do not require the
consumer to return goods but if he is required to under the contract and does
not do so, he must pay the cost to the supplier of recovering them.
The Regulations provide that the contract must be performed within 30 days
subject to agreement between the parties. However, where the supplier is not
able to provide the goods or service ordered, substitutes may be offered if
certain conditions are met (regulation 19).
The Regulations provide that where the consumer's payment card is used
fraudulently in connection with a distance contract the consumer will be
entitled to cancel the payment. If the payment has already been made the
consumer will be entitled to a re-credit or to have all sums returned by the
card issuer. The Regulations amend the Consumer Credit Act 1974 by removing
the potential liability of the debtor under a regulated consumer credit
agreement for the first £50 of loss to the creditor from misuse of a
credit-token in connection with a distance contract.
The Regulations prohibit the supply of unsolicited goods and services to
consumers. Regulation 24 replaces with amendments section 1 of the
Unsolicited Goods and Services Act 1971 and Article 3 of the Unsolicited
Goods and Services (Northern
Ireland) Order 1976. It also creates an
offence in similar terms to section 2 of the 1971 Act but extended to the
supply of unsolicited services and limited to supply to consumers. The scope
of section 2 of the 1971 Act and Article 4 of the 1976 Order (which apply
only to goods) is amended to restrict their application to the unsolicited
supply of goods to businesses.
The Director General of Fair Trading, Trading Standards Departments in Great Britain and the Department of
Enterprise, Trade and Investment in Northern Ireland are enforcement
authorities for the purposes of the Regulations. Regulation 26 provides that
an enforcement authority must consider complaints about a breach of the
requirements of the Regulations. Those bodies are given the power to take
proceedings for an injunction against a business to prevent further breaches
(regulation 27).
A Regulatory Impact Assessment is available, copies of which have been placed
in the libraries of both Houses of Parliament. Copies are also available from
the Consumer Affairs Directorate of the Department of Trade and Industry,
Room 415, 1 Victoria Street,
London SW1H 0ET.
Notes:
[1]
S.I. 1993/2661.
[2] 1972 c. 68.
[3] S.I. 1976/1812.
[4] Directive 97/7/EC was added to Annex
XIX to the EEA Agreement by Decision No. 15/98 of the EEA joint Committee
which came into force on 1 July 2000 (O.J. No L272, 8.10.98, p.99).
[5] 1989 c. 34.
[6] 1995 c. 7.
[7] 1695 c. 12(1).
[8] 1992 c. 35.
[9] S.I. 1992/3288.
[10] S.I. 1999/2083.
[11] 1974 c. 39.
[12] 1971 c. 30.
[13] S.I. 1976/57 (N.I.1).
[14] O.J. No. L141, 11.06.1993, p.27.
[15] O.J. No. L386, 30.12.1989, p.1, to
which there are amendments not relevant to these Regulations.
[16] O.J. No. L228, 16.08.1973, p.3.
Relevant amending instruments are Council Directive 84/641/EEC (O.J. No.
L339, 27.12.84, p.21); Council Directive 87/343/EEC (O.J. No. L185, 4.7.87,
p.72); Council Directive 87/344/EEC (O.J. No. L185, 4.7.87, p.77); Council
Directive 90/618/EEC (O.J. No. L330, 29.11.90, p.44); Council Directive
92/49/EC (O.J. No. L228, 11.8.92, p.1.).
[17] O.J. No. L63, 13.03.1979, p.1, to
which there are amendments not relevant to these Regulations.
[18] O.J. No. L56, 04.04.1964, p.878/64
(O.J./S.E. 1st series 1963-64 p.131), to which
there are amendments not relevant to these Regulations.
[19] O.J. No. L228, 11.08.1992, p.1.
[20] O.J. No. L360, 09.12.1992, p.1.
ISBN 0 11 099872 3
STATUTORY
INSTRUMENTS
2005 No. 689
CONSUMER PROTECTION
The Consumer Protection (Distance Selling)(Amendment)
Regulations 2005
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Made
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11th March 2005
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Laid before
Parliament
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16th March 2005
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Coming into force
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6th April 2005
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The Secretary of State, being a Minister designated[1] for the purposes of
section 2(2) of the European Communities Act 1972[2] in relation to matters
relating to consumer protection, in exercise of the powers conferred on her
by section 2(2) of that Act, hereby makes the following Regulations:
Citation, commencement and extent
1.
- (1) These Regulations may be cited as the Consumer Protection
(Distance Selling)(Amendment) Regulations 2005 and
shall come into force on 6th April 2005.
(2) These Regulations extend to Northern Ireland.
Amendments to the Consumer Protection
(Distance Selling) Regulations 2000
2.
The Consumer Protection (Distance Selling) Regulations 2000[3] are amended in
accordance with the Schedule to these Regulations.
Gerry Sutcliffe
Parliamentary Under Secretary of State for Employment Relations, Postal Services
and Consumers Department of Trade and Industry
14th March 2005
SCHEDULE
Regulation
2
Amendments to the Consumer Protection
(Distance Selling) Regulations 2000
1.
- (1) Regulation 8 (written and additional information) is amended
as follows.
(2) In paragraph (2)(b) -
(a)
the word "and" at the end of sub-paragraph (i)
is omitted; and
(b) after sub-paragraph (ii) there is inserted -
"
(iii) in the case of a contract for the supply of services, information as to
how the right to cancel may be affected by the consumer agreeing to
performance of the services beginning before the end of the seven working day
period referred to in regulation 12;".
(3)
Paragraph (3) is omitted.
2.
- (1) Regulation 12 (cancellation period in the case of contracts
for the supply of services) is amended as follows.
(2) In paragraph (3) -
(a)
before the words "Where a supplier" there
is inserted "Subject to paragraph (3A)"; and
(b) after the words "in regulation 8(2)" the words "and
(3)" are omitted.
(3)
After paragraph (3) there is inserted -
"
(3A) Where the performance of the contract has begun with the consumer's
agreement before the expiry of the period of seven working days beginning
with the day after the day on which the contract was concluded and the
supplier has not complied with regulation 8 on or before the day on which
performance began, but provides to the consumer the information referred to
in regulation 8(2) in good time during the performance of the contract, the
cancellation period ends -
(a)
on the expiry of the period of seven working days beginning with the day
after the day on which the consumer receives the information; or
(b) if the performance of the contract is completed before the expiry of the
period referred to in sub-paragraph (a), on the day when the performance of
the contract is completed.".
(4)
In paragraph (4) for the words "neither paragraph (2) nor (3)
applies" there is substituted "none of paragraphs (2) to (3A)
applies".
3.
- (1) Regulation 13 (exceptions to the right to cancel) is amended
as follows.
(2) For paragraph (1)(a) there is
substituted -
"
(a) for the supply of services if the performance of the contract has begun
with the consumer's agreement -
(i) before the end of the
cancellation period applicable under regulation 12(2); and
(ii) after the supplier has provided the information referred to in
regulation 8(2).".
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations amend the Consumer Protection (Distance Selling)
Regulations 2000 (S.I. 2000/2334) ("the principal Regulations").
The principal Regulations partially implement Directive 97/7/EC of the
European Parliament and the Council of 20 May 1997 (O.J. No. L144, 4.6.97,
p.19) on the protection of consumers in relation to distance contracts.
The principal Regulations apply to certain contracts for goods or services to
be supplied to a consumer where the contract is made exclusively by means of
distance communication ("distance contracts"). Where the principal
Regulations apply, a consumer has the right to cancel a distance contract by
notice to the supplier during a specified "cooling off period"
whose length depends on whether and when the supplier complies with the
requirement to provide the written information.
Regulation 8 of the principal Regulations is amended so that the supplier is
no longer required to inform the consumer, prior to the conclusion of a
contract for services, that he will not be able to cancel once performance of
the services has begun with his agreement. Instead, the supplier must, in
such cases, provide the consumer with information as to how the right to
cancel may be affected if the consumer agrees to performance beginning less
than seven working days after the contract was concluded. This information
must be provided prior to or in good time during the performance of the
contract.
Regulations 12 and 13 of the principal Regulations are amended so that-
(a) where a supplier of services
provides the information required by regulation 8 before performance of those
services begins and the consumer agrees to such performance beginning before
the end of the cooling off period, there is no right to cancel; and
(b) where a supplier of services provides that information in good time
during the performance of the services, there is a right to cancel even if
the consumer agrees to performance beginning within seven working days of the
contract being concluded, but the cooling off period begins when the consumer
receives the information and ends seven working days later or when
performance is completed (whichever is the sooner).
A regulatory impact assessment has been prepared
and copies can be obtained from Consumer and Competition Policy Directorate,
Department of Trade and Industry, 1
Victoria Street, London SW1H 0ET.
Notes:
[1] S.I. 1993/2661.
[2] 1972 c. 68.
[3] S.I. 2000/2334, to which there are amendments
not relevant to these Regulations.
ISBN 0 11 072590 5
Date of posting: 27th February 2007
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