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Legal Guidance -
Distance Selling Regulations
This Guidance Notice seeks
to give information to healers in
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
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.
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
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
- 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 (
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
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 |
31st August 2000 |
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|
|
Laid before Parliament |
1st September 2000 |
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Coming into force |
31st October 2000 |
|
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
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
"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
"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
"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;
"
"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
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 (
23.
- (1) The Unsolicited Goods and Services (
(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) -