Please enable JavaScript.
Coggle requires JavaScript to display documents.
Topic 10- Consumer Protection (European Communities (Unfair Terms in…
Topic 10- Consumer Protection
Aftersales services
S12 1980 Act: Creates implied warranty concerning contracts for the sale of goods to the effect that spare parts and a sufficient afterslaes service will be provided by the supplier for a period specified by the supplier
In event of no such period specified: a reasonable period of time is implied
The term cannot be excluded under any circumstances
Guarantees
s15, 1980 Act: Defines as
Any document
notice
or written statement
supplied by a manufacturer or other supplier other than a retailer, in connection with the supply of any goods and indicating that the manufacturer or other supplier will service, repair or otherwise deal with the goods following purchase
Guarantee must satisfy a number of requirements
Any failure to do so will be an offence
Guarantee must clearly specify the goods to which it relates, as well as its duration
Document must be legible and mus state the name and address of the preson supplying it
It must detail the proceudre that mus be followed in order to make a claim under it
Terms in Contract for the supply of serivces
1980 Act introduced implied terms that govern contracts of services
This does not apply to services rendered by an employee to an employer under an employment contract
S39 Implies a number of terms into contracts where the supplier is acting in the course of his or her business
include
The supplier has the required skills to supply the service
The supplier will use skill, care and diligence in the provision of that service
The materials used by the supplier in the provision of teh service are sound and fit for the purpose for which they are being used
That any goods supplied under the contract are of merchantable quality
Parties may exclude these terms from a contract for the supply of services:
The express agreement of the parties
A course of dealing indicates those terms are normally excluded
It is customary in the relevant trade to exclude these terms and this is known or ought to be known by both parties
Where supplier of service dealing with a consumer:
Terms implied in this respect may only be excluded where this exclusion may be show to be
fair and reasonable
between the parties
The consumer must have been aware of the exclusion clause by express communication
European Communities (Unfair Terms in Consumer Contracts) Regulations
Incorporated into Irish Law via European Communities Regulations 1995
All consumer contracts concluded after 31/12/1994
Covers contract between a consumer and a seller of goods/supplier of services
Definitions under Regulation
Consumer:
A natural person (not a company)
Acting for purposes outside of his business
Seller:
A person who acting for purposes related to his business sells goods
Supplier
A person who, acting for the purposes of his business, supplies services
Contracts Excluded from Regulations
Employment
succession rights
rights under family law
incorproation and organisation of companies
Insurance contracts not excluded
Contracts that fall within the Regulations
Regulation 3(1) provides that the Regulations apply to any term in a contract that has been concluded between a sweler of goods or a supplier of services and a consumer which has not been
individually negotiated
Burden of proving term was individually negotiated on seller or the supplier
s3(5): Even if one term of a contract is individually negotiated, rest of teh contract must satisfy the regulations if it is a pre-formulated, standard form contract
Standard form Contracts
I is common for businesses to present consumers with standard form contract on a 'take it or leave it' basis
customers often left with no option to query or vary
Caution with which these contracts approached with highlighed in
McCord v ESB
:
This concerned ESB standard form contract for supply of electricity
Terms of contract construed against ESB who were reying on it
Fact ESB enjoyed a monopoly in terms of supply of electricity taken into accunt
Held; In such cases, the term of such standard form contracts must be construed against the proferens
Limitation of Application
Core terms cannot form the subject matter of the fairness test as long as they are in plain, intelligible language
Plain intelligible language
Objective test: Looking at ordinary consumer
General duty on seller to ensure any writteen terms offered to consumer drafted in plain intelligible language
Construction
: Contra proferentem rule of construction
s5(2) Where there is doubt about meaning of a term the interpretation most favorable to the consumer shall prevail
The effect of unfair terms
Under the Regulations, an unfair term in a contract concluded with a consumer by a seller or a buyer is not binding on he consumer
The contract will continue to bind theparties, however, if it is capable of continuing existence without the unfair term
The test of Unfairness
Dealt with under regulation 3(2)
An Indicative but not exhaustive list of erms that will be regarded as being unfair set out under Schedule 3
Relevant time-frame for assessing fairness is at the time of the conclusion of the contract
In order to be considered an unfair term- must be demonstrated to have caused a significant imbalance in the parties' rights and obligations, which operates to the detriment of the consumer
If there is such imbalance, seller must be shown to have
acted contrary to the requirement of good faith
2 elements of unfairness
A significant imbalance in the parties rights and obligations under the contract to the detriment of the consumer
no definition of significant imbalance: confined to terms within the contract or whether the imbalance is adjudged according to all the surrounding circumstances
The requirement of good faith
some assistance as to meaning of good faith provided under Schedule 2
a) nature of goods and services
b) the relative bargaining power of the parties
c) whether or not the party was induced into entering into the contract
d) Whether or not the goods in qu were made to the special order of the customer
e) circumstances surrounding the conclusion of the contract
Choices of Law
Regulation 7 includes a provision intended to prevent evasion of the Regulations by choice of law
European Union (Consumer Information, cancellation and other rights) Regulations 2013
Distance Contract
A2(7): Defines 'distance contract means any contract concluded between trader and consumer under an organised distance sales or service provision scheme without the simultaneous physical prescence of the trader an the consumer
Off-premises contract
A2: Defines off premises contract means any contract between consumer which is
a) concluded in simultaneous physical presence of the trader
b) for which an offer was made by the consumer in the same circumstances as referred to in (a)
c) concluded on business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneously physical presence of the trader and the consumer; or
d) concluded during excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer
The Consumer rights Directive proposes to standardise rule for 'the common aspects of distance and off-premises contracts'
The Directive requires that traders provide certain information to the consumer before he or she can be
bound
by the contract
Right to cancel
A14: Harmonises the right of withdrawal from distance selling and off-premises contracts
The consumer shall have a right of withdrawal from the contract within 14 days of the event without incurring any specific cost as a result
If trader does not provide any info to consumer re right of withdrawal, the right will expire after 12 months after the ending of the initial 14 day period