Unlucky for some

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

It seems appropriate that Friday the 13th is the implementation date for the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.  For some retailers, the consequences of not getting it right could be a horror show.
Let’s call them the Consumer Contracts Regulations, because everyone else does.  Legislation which starts in Brussels is often complex and convoluted and the Consumer Contracts Regulations are nothing if not that.

The first thing you have to decide is whether they apply to your business.  To do this, use the following checklist:

Are you a trader?

• A trader is someone who acts in relation to his trade, business craft or profession.
• This does not have to be a limited company – sole traders, partnerships, charities and even public bodies are caught.

Are you dealing with a consumer?

• A consumer is a real person, not a limited company, partnership etc.
• He must be acting for purposes wholly or mainly outside his trade, business, craft or profession.
• “Wholly or mainly outside” means that he may enter a contract with you for personal and business purposes, but he won’t be a consumer if the predominant purpose is personal.

Is the contract exempt?

• The Regulations apply to all contracts between a trader and a consumer, whether for the supply of goods or services or for anything else, except that:
• Gambling contracts are exempt.
• Financial services contracts such as banking, credit, insurance, investment contracts etc are mainly exempt unless they are ancillary to a contract which is caught by the Regulations, in which case some limited new rules apply to them. An example might be a finance agreement for a new car.
• Leases, tenancies and property transfers are exempt.
• Contracts for the construction of new buildings or the conversion of old buildings are exempt.
• The supply of household goods by roundsmen, such as the milk delivered by the milkman you haven’t used since 1988, is exempt.
• Package travel contracts and timeshares are exempt.

Once you’ve decided that the Consumer Contracts Regulations apply to you, the next thing is to look at the type of contract, because different definitions and different rules apply, depending on how the contract is made.  All contracts caught by the Regulations must now fall within one of three categories:

1. On-premises contracts – An on-premises contract is a contract that isn’t either an off-premises contract or a distance contract.  These will still make up the majority of consumer contracts, at least for the time being.
2. This is a contract where:
   The consumer’s offer, or the contract itself, is made face to face away from the trader’s premises; or
   Immediately after the consumer was personally and individually addressed, face to face away from the trader’s premises, the contract was made either on the trader’s premises or through any form of distance communication such as telephone or email.  (“Immediately” means the consumer must not have time to reflect on an estimate given at this time); or
   A contract made during an excursion organised by the trader with aim or effect of selling goods or services.
3. Distance contracts – A distance contract is a contract which is:
   Made under an organised scheme for selling or supplying without both the trader and the consumer being physically present simultaneously; and
   Made using only means of distance communication.
   An organised scheme will include an online sales platform, but not a website intended only to provide information about the trader and his goods or services.  It will also include contracts made using a third party’s online sales platform, so a sale made, for example, through eBay will be a distance contract.

The Headlines

The new rules are summarised below but there are some key points that need to be highlighted.

Pre-Contract Information – The Regulations introduce a requirement for certain information to be given to consumers, even in a face to face transaction on the trader’s premises.  There have been requirements for information to be given to consumers away from the trader’s premises for some time, but the type of information that has to be given has been expanded and a model cancellation form has to be given to the consumer.

Cancellation – Subject to certain exceptions, the consumer has the right to cancel distance contracts and off-premises contracts worth more than £42 (but not on-premises contracts).  The basic cancellation period is now extended to 14 days.  If the trader fails to tell the consumer about the right to cancel and how and when to exercise that right, the cancellation period is extended to 14 days after the information is given, subject to a maximum of 12 months and 14 days.

The consumer will usually have to return any goods purchased and the trader must reimburse the price within 14 days, but he can reduce the refund if the value of the goods has diminished as result of the consumer’s use of them provided the pre-contract information about cancellation has been given. If the contract is for a service (eg. vehicle repair work), the trader must not start the work within the 14 day cancellation period unless the consumer requests.

Delivery – English law has always implied a term that if no time for delivery of goods is specified in a contract, they should be delivered in a reasonable time.  The Regulations mean that in a  consumer contract a reasonable time cannot exceed 30 days unless the consumer and the trader agree a different delivery date.

Additional Payments –  The trader cannot charge the consumer any more than the basic price agreed unless the consumer has expressly agreed to this before the contract is made.  A pre-ticked box on an online form will not amount to express agreement.

Conclusion

Traders need to work harder than ever to comply with the consumer’s rights, especially when selling online.  Probably the single most important thing is to give the pre-contract information,  A trader who fails to give that information exposes himself to the return of goods potentially more than a year after the sale.

Most of the requirements of the Regulations can be met by drafting standard documents informing customers of their rights.  Time to call in the lawyers!

THE NEW RULES FOR ON-PREMISES CONTRACTS

Other than in day-to-day, routine contracts the trader must provide the consumer with the following information before the contract is made:

• the main characteristics of the goods or services;
• the name, address and telephone number of the trader;
• the price inclusive of taxes, or if not fixed the manner in which the price is to be calculated;
• the fact that additional delivery charges may be payable including the amount if known;
• the arrangements for payment, delivery, performance including timescales;
• the trader’s complaint handling policy;
• in the case of a sales contract, a reminder that the trader is under a legal duty to supply goods that are in conformity with the contract;
• the existence and the conditions of after-sales services and guarantees;
• the duration of the contract, or if not fixed the conditions for terminating it;
• the functionality, including applicable technical protection measures, of digital content;
• any relevant compatibility of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of.

The trader must obtain the consumer’s express prior consent for any additional payments.
The trader must deliver any goods ordered within 30 days unless the consumer agrees otherwise.
The trader cannot use anything other than a basic rate telephone number.

THE NEW RULES FOR OFF-PREMISES CONTRACTS

Unless the price payable by the consumer is less than £42, the trader must provide the consumer with the following information before the contract is made:

• the main characteristics of the goods or services;
• the trader’s name, address, telephone number, fax number and email address;
• if the trader is acting on behalf of another trader, the address and identity of the other trader;
• the price inclusive of taxes, or if not fixed the manner in which the price is to be calculated;
• the fact that additional delivery charges may be payable including the amount if known;
• the arrangements for payment, delivery, performance including timescales;
• the trader’s complaint handling policy;
• in the case of a contract of a rolling or subscription contract, the total costs per billing period or the total monthly costs;
• the cost of using the means of distance communication to make the contract if not at the basic rate;
• if the consumer has a right to cancel the contract, the conditions, time limit and procedures for exercising that right;
• the fact that the consumer will have to pay to return the goods in case of cancellation;
• the fact that if the consumer asks the trader to perform a service within the 14 day cancellation period, he will have to pay the trader’s reasonable costs even if he cancels;
• the circumstances under which the consumer loses the right to cancel (or the fact that there is no right to cancel because of an exemption);
• in the case of a sales contract, a reminder that the trader is under a legal duty to supply goods that are in conformity with the contract;
• the existence and conditions of any after-sale assistance, services or guarantees;
• the existence of any relevant codes of conduct;
• the duration of the contract, or if not fixed the conditions for terminating it;
• the minimum duration of any obligations of the consumer under the contract;
• the existence and conditions of any deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;
• the functionality, including applicable technical protection measures, of digital content;
• any relevant compatibility of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of;
• how to access any out-of-court complaint and redress mechanism to which the trader is subject.

The trader must obtain the consumer’s express prior consent for any additional payments, not by using default means.
The trader must send the consumer a copy or confirmation of the contract.
The trader must deliver any goods ordered within 30 days unless the consumer agrees otherwise.
The consumer has the right to cancel the contract within 14 days, with certain exceptions, including:

• Contracts for passenger travel services;
• Contracts for medicinal products;
• Contracts for bespoke or personalised goods;
• Contracts for goods which expire or deteriorate rapidly;
• Contracts made at a public auction.

If the contract is cancelled:

• The consumer must usually return the goods;
• The trader must reimburse the price (but not the delivery charges) within 14 days;
• If the value of the goods has diminished by the consumer’s use of them, the trader can reduce the amount of the reimbursement.

The trader must not provide services under an off-premises contract until the initial 14 day cancellation period has expired unless the consumer requires him to do so, in which case the trader is entitled to his reasonable costs if the consumer then cancels.
Any ancillary contract will be terminated automatically on cancellation of the main contract.
The trader cannot use anything other than a basic rate telephone number.

THE NEW RULES FOR DISTANCE CONTRACTS

These new rules apply to all distance contracts:

The trader must provide the consumer with the following information before the contract is made:

• the main characteristics of the goods or services;
• the trader’s name, address, telephone number, fax number and email address;
• if the trader is acting on behalf of another trader, the address and identity of the other trader;
• the price inclusive of taxes, or if not fixed the manner in which the price is to be calculated;
• the fact that additional delivery charges may be payable including the amount if known;
• the arrangements for payment, delivery, performance including timescales;
• the trader’s complaint handling policy;
• in the case of a contract of a rolling or subscription contract, the total costs per billing period or the total monthly costs;
• the cost of using the means of distance communication to make the contract if not at the basic rate;
• if the consumer has a right to cancel the contract, the conditions, time limit and procedures for exercising that right;
• the fact that the consumer will have to pay to return the goods in case of cancellation;
• the fact that if the consumer asks the trader to perform a service within the 14 day cancellation period, he will have to pay the trader’s reasonable costs even if he cancels;
• the circumstances under which the consumer loses the right to cancel (or the fact that there is no right to cancel because of an exemption);
• in the case of a sales contract, a reminder that the trader is under a legal duty to supply goods that are in conformity with the contract;
• the existence and conditions of any after-sale assistance, services or guarantees;
• the existence of any relevant codes of conduct;
• the duration of the contract, or if not fixed the conditions for terminating it;
• the minimum duration of any obligations of the consumer under the contract;
• the existence and conditions of any deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;
• the functionality, including applicable technical protection measures, of digital content;
• any relevant compatibility of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of;
• how to access any out-of-court complaint and redress mechanism to which the trader is subject; and
• a cancellation form, if the consumer has a right to cancel.

The trader must obtain the consumer’s express prior consent for any additional payments, not by using default means such as pre-checked boxes.
The trader must confirm the contract.
The trader must deliver any goods ordered within 30 days unless the consumer agrees otherwise.
The consumer has the right to cancel the contract within 14 days, with certain exceptions, including:

• Contracts for passenger travel services;
• Contracts for medicinal products;
• Contracts for bespoke or personalised goods;
• Contracts for goods which expire or deteriorate rapidly;
• Contracts made at a public auction.

If the contract is cancelled:

• The consumer must usually return the goods;
• The trader must reimburse the price (but not the delivery charges) within 14 days;
• If the value of the goods has diminished by the consumer’s use of them, the trader can reduce the amount of the reimbursement.

Any ancillary contract will be terminated automatically on cancellation of the main contract.
The trader cannot use anything other than a basic rate telephone number.

These new rules apply to online sales:

• The trader must supply the consumer with pre-contract information directly before the order is placed.
• The trader must obtain the consumer’s express agreement that the order comes with an obligation to pay.
• The trader must label any button or payment method with words such as “order with obligation to pay”.

These new rules apply to telephone sales:

• The trader must identify himself at the start of the call;
• The trader must identify the commercial purpose of the call at the start.