Selling to UK consumers – 5 / 5 观点
What do you need to tell a consumer upfront and when can they cancel a contract? As part of a series of articles on UK consumer protection law, we look at the Consumer Contracts Regulations 2013.
The Consumer Contracts (Information Cancellation and Additional Charges) Regulations 2013 (CCRs) cover rules on pre-contractual information, cancellation and additional charges for consumer contracts whether they are on-premises, off-premises or distance contracts (subject to limited exceptions).
They implement the Consumer Rights Directive and also apply to auctions and contracts for social services and healthcare.
The CCRs originally transposed the EU Consumer Rights Directive.
The CCRs will not apply to contracts relating to:
"Consumer" means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.
"Trader" means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.
"Business premises" where a trader is concerned means:
"Delivery" means voluntary transfer of possession from one person to another.
"Distance contract" means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded.
"Durable medium" means paper or email, or any other medium that:
"Off-premises contract" means a contract between a trader and a consumer which is any of these:
A contract concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer.
"On-premises contract" means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract.
"Sales contract" means a contract under which a trader transfers or agrees to transfer the ownership of goods to a consumer and the consumer pays or agrees to pay the price, including any contract that has both goods and services as its object.
All contracts within the scope of the CCRs are subject to pre-contractual information requirements with the exception of:
Note that pre-contractual information requirements under other legislation including the Consumer Protection from Unfair Trading Regulations 2008 and the Electronic Commerce (EC Directive) Regulations 2000, may still apply even if contracts are exempt under the CCRs.
Any pre-contractual information which must be provided under the CCRs is incorporated into the contract.
Information is only considered to be made available to a consumer if the consumer can reasonably be expected to know how to access it.
Before a consumer is bound by an on-premises contract, the trader must give the consumer the information set out in in Schedule 1 of the CCRs in a clear and comprehensible manner if that information is not already apparent from the context. This does not apply to day to day transactions performed immediately.
Before a consumer is bound by an off-premises contract, the trader must give the information in Schedule 2 of the CCRs to the consumer and, where a cancellation right exists, give the consumer a cancellation form as set out in Schedule 3.
The information must be given on paper or (with the consumer’s agreement) on another durable medium. The trader is given the option of using model cancellation instructions as set out in Schedule 3 but is not obliged to do so. If they are used, the trader will be treated as having complied with some of the key information requirements.
A copy of the signed contract or confirmation of the contract must be provided on paper (or another durable medium with the consumer’s agreement) within a reasonable time after conclusion of the contract but in any event, no later than:
If the contract is for the supply of digital content not on a tangible medium and the consumer has consented to receiving the content and acknowledged that the cancellation right will be lost on supply, the copy or confirmation of the contract must include confirmation of the consent and acknowledgment.
Where the contract relates to a contract for immediate (as requested by the consumer) repair or maintenance services with a value under £170, s10(1) will not apply provided certain conditions are met.
Before a consumer is bound by a distance contract, the trader must provide the information listed in Schedule 2 in a clear and comprehensible manner and in a way appropriate to the means of distance communication used. If a right to cancel exists, a cancellation form must be provided as set out in Schedule 3.
Confirmation of the contract must be given on a durable medium and include all the Schedule 2 information unless already provided on a durable medium. The time of provision is within a reasonable time after conclusion of the contract but in any event, no later than:
The trader is given the option of using model cancellation instructions as set out in Schedule 3 but is not obliged to do so. If they are used, the trader will be treated as having complied with some of the key information requirements.
Where a trader makes a telephone call to conclude a distance contract, certain information must be disclosed at the start of the call including identification of the caller and the commercial purpose of the call.
Where a distance contract is concluded by electronic means, the following Schedule 2 information must be provided "in a clear and prominent manner" directly before the order is placed:
The trader must ensure that when placing the order, the consumer explicitly acknowledges any obligation to pay. Where the placing of the order involves clicking on a button or similar, the button must be labelled "in an easily legible manner only with the words 'order with an obligation to pay' or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader". Failure to comply with these obligations will mean the customer is not bound. The CCRs are unclear on the precise meaning of this and whether the contract has been formed but is unenforceable or whether no contract has been formed at all and this may require clarification.
Any trading website must indicate clearly and at the latest at the beginning of the ordering process, whether any delivery restrictions apply and what means of payment is accepted.
It is a fineable offence for off-premises contracts not to provide a consumer with information about the right to cancel and about the cost of returning any goods or paying for any services provided during the cancellation period. In addition, failure to provide this information leads to the loss of right to certain payments.
Public authorities can enforce the information rules on receipt of a complaint.
These apply only to off-premises and distance contracts covered by the CCRs, subject to the following exceptions regarding contracts for:
Cancellation rights do not affect the consumer’s right to withdraw from a distance or off-premises contract at any time before the contract is concluded without incurring costs or giving a reason for withdrawal.
The cancellation period extends by an additional 12 months if the trader fails to provide the consumer with valid notice of the right to cancel. If valid notice is provided during the extended period, the cancellation period will last for 14 days after the consumer receives the information.
The obligations of the parties to perform the contract will end and any ancillary contract will be automatically terminated.
The trader must:
The consumer must:
The trader cannot begin the supply of digital content on a non-tangible medium before the end of the cancellation period unless the consumer gives express consent to receiving it together with acknowledgment that they will lose the right to cancel. In addition, the trader must provide the necessary confirmation of the contract within a reasonable time. If the conditions of supply are not complied with, the trader loses the right to be paid for the content.
Model cancellation instructions are set out in Part A of Schedule 3. These may be used by the trader to notify the consumer of the right to cancel. While traders are not obliged to use them, if they do, they will be treated as complying with the obligation to inform the consumer of their cancellation rights.
Part B of Schedule 3 sets out a model cancellation form which must be supplied to the consumer in an off-premises contract and made available to the consumer in a distance contract. The consumer is not required to use this to cancel the contract. If the consumer does use a model cancellation form or "other statement" on the trader’s website, the trader must acknowledge receipt in a durable medium without delay.
Regulation 39 amends the Consumer Protection from Unfair Trading Regulations 2008 to include an additional provision so that where a trader engages in inertia selling, the consumer has no obligation to pay for the products.
Any failure by the consumer to respond to the trader will not constitute consent to pay for the products or to return or keep them safe. In the case of an unsolicited supply of goods, the consumer may treat them as if they were an unconditional gift.
Under Regulation 40, the consumer must give express consent to any additional payments prior to the conclusion of the contract. This is designed to prevent traders using devices such as pre-ticked boxes to add extras to a purchase.
This provision does not apply to contracts for financial services where the provision of financial services is the main obligation.
Where a trader provides a contact number to a consumer in connection with a contract, calls must not be charged over the basic rate. If more than the basic rate is charged, the trader will be liable to compensate the consumer for charges above the basic rate.