Consumer Contracts

Common Law Position and Reform The basic principle at common law was that of “buyer beware”. Goods were taken in their actual state and condition, subject to the express or implied terms of the contract Over time , the common law implied in terms to a contract, compatible with the circumstances and intentions of the parties. The Sale of Goods […]

Additional EU Rights in Consumer Sales The Consumer Sales Regulations (European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003) put the 1999 EU Consumer Sales Directive into effect in Irish law.  Accordingly, they provide a common minimum standard through Europe.  They supplement the existing Sale of Goods and the Unfair Terms in Consumer Contracts […]

Conditions on the Sale of Goods I The Sale of Goods Act, as amended in 1980, provides certain basic protections for consumers when they deal with a business, which cannot generally be overridden, or in some cases, may be overridden, only to the extent that the amendments are fair and reasonable. A seller of goods undertakes that he has title […]

Overview A contract may be negated by the misrepresentation of one party. A misrepresentation is a statement which is untrue, which induces a party to enter a contract. A representation may become part of the contract.  The breach may be either a breach of condition entitling the other party to terminate or a breach of warranty entitling the other party […]

EU Consumer Rights Directive 2011 The Consumer Rights Directive 2011 modifies and supplements the law set out in the earlier Distance Selling and Doorstep Contracts Regulations.  It is implemented in Ireland by regulations made in 2013. There are five principal categories of transaction to which the regulations are applicable; contracts for the sale of goods; contracts for the supply of […]

An Invitation to Purchase An invitation to purchase is a concept unique to the legislation.  The European Courts have interpreted the concept broadly.  There may be an invitation to purchase, once there is sufficient information, whether by advertisement or otherwise, for the consumer to make the transactional decision. The communication need not necessarily be an offer. The presence of the […]

Distance and Off-Premises Sales In distance and off-premises sales, the trader must provide specified information both pre-contract and post contract. Before a consumer is bound by an off-premises contract or offer, the trader must provide specified information. The information must be apparent to a typical or average consumer who is reasonably well informed and reasonably observant.  The totality of what […]

Right to Cancel A right of cancellation applies to contracts made off-premises and distance contracts. The period for cancellation under the 2011 Directive and the 2013 Regulations is 14 calendar days.  There is provision for model cancellation instructions and a model cancellation form. The information on the right to cancel may be provided by standard cancellation instructions given in the […]

Unfair Contract Terms The general rule of contract law is that the parties are bound by whatever they agree.  In the past, sellers were entitled to impose whatever conditions they wanted in small print which could be deemed to be accepted and binding on the consumer, no matter how unfair their content. This approach did not recognise that in reality, […]

Good Faith Requirement in Consumer Dealing The European Communities (Unfair Terms in Consumer Contracts) Regulations, (the Unfair Contract Terms Regulations) introduced the concept of negotiation in good faith, into consumer contracts.  The principle is found in many Continental law systems which apply a duty of good faith to many contractual negotiations and dealings. The purpose of the legislation is to […]

Meaning of “unfair” A term in a consumer contract is unfair if it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer. The assessment of the transparency of a consumer contract term will take account of specific requirements. In assessing if a term complies with the requirements of good faith, regard will be […]

Not Binding No term may be implied into a consumer contract that would be unfair under the following provisions, if it were an express term of such a contract. An  unfair term of a consumer contract is not binding on the consumer. This does not prevent the consumer from relying on the unfair term if they so choose and if […]

Information requirements for a distance contract A trader must provide the information specified in Schedule 3 in a clear and comprehensible manner and provide the model cancellation form set out in Part 2 of Schedule 4, where the right to cancel the contract exists, before the distance contract is binding. In the case of a public auction the relevant information […]

Scope The off-premises consumer contract provisions   do not apply to off-premises contracts where the consumer pays no more than €50. Where two or more off-premises contracts with related subjects are concluded at the same time, the total payment to be made by the consumer will be taken into account. Any purported waiver of rights by a consumer conferred by the […]