Consumer Cancellation

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 manner set out below.

Where a right to cancel the contract exists, the model form of cancellation prescribed by the regulations must be provided. They provide a form, which can be returned to the trader, setting out the trader’s details, which can be returned in order to give notice of cancellation of the contract.  It must be given on paper or if the consumer agrees, in another durable medium.  It must be legible and in plain and intelligible language.

The cancellation form is to be on paper or another durable medium.  A durable medium includes an e-mail, which enables its recipient to store information addressed personally to him in a way which is accessible for future reference. It must be available for a period of time that is adequate for the purpose of the information and allows the unchanged reproduction of the stored information. A pdf type attachment would generally suffice.


Exceptions to Right of Cancellation

The right of cancellation does not apply to the following contracts.

  • service contracts after the service has been fully performed, if performance has begun with consumer’s prior express consent and the consumer’s acknowledgment that he will lose the right to cancel the contract, once the contract has been performed by the trader;
  • contracts for the supply of digital content not supplied in a tangible medium where the performance has begun with the consumer’s prior express consent and the consumer’s acknowledgment that he thereby loses the right to cancel the contract;
  • contracts for the supply of goods or services whose price is dependent on fluctuations in the financial market that can occur during the cancellation period and cannot be controlled by the trader;
  • contracts for the supply of non-prefabricated goods made on the basis of an individual choice of or decision by the consumer;
  • contracts for the supply of goods that are clearly personalised;
  • contracts for the supply of goods that are liable to deteriorate or expire rapidly;
  • contracts for the supply of sealed goods that are not suitable for return such as for health, protection and hygiene reasons and which are unsealed after delivery;
  • contracts for the supply of goods that are, according to their nature inseparably mixed with other items after their delivery;
  • contracts for the supply of alcoholic beverages, where the price has been agreed at the time of conclusion of the sale contract, the delivery of the beverages can only take place after 30 days from the conclusion of the sales contract and the value of the beverage is dependent on fluctuations in the market that cannot be controlled by the trader;
  • contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance;
  • contracts for the supply of sealed audio, sealed video recordings or sealed computer software, that were unsealed after delivery;
  • contracts for the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications;
  • contracts concluded at a public auction;
  • contracts for passenger transport service;

Exceptions to Cancellation Right for Certain Short Terms Services

In the following five cases, the exemption applies where the contract provides for a specified date or period of performance.

  • contracts for the provision of accommodation. other than for residential purposes;
  • contracts for the transport of goods;
  • contracts for car rental services;
  • contracts for catering;
  • contracts for services related to leisure activities.

The above provisions are wider than the exclusions under the earlier legislation, which was considered to be too onerous on traders in some respects.


Exercise of Cancellation Right

The cancellation rights can be exercised for any reason.  The consumer may incur a liability cost in some circumstances, in which the right to cancel is exercised. Consumers must notify traders of the decision to cancel the contract. The above mentioned prescribed model cancellation form may be used.

Alternatively, the consumer may make some other unequivocal statement, setting out the decision to cancel the contract.It appears that more than the mere return of the goods is required.  A verbal communication is likely to suffice, although written communication is better.

The statement should be unequivocal. Cancellation is deemed to take place, once notice of cancellation is posted, in the case of postal communication.  The burden of proof is on the consumer to show that the right of cancellation has been exercised.


Effect of Cancellation; Repayment

When the contract is cancelled, the rights and obligations of the parties terminate.  The trader must reimburse payments made, including the costs for delivery and receipt.  If the consumer has chosen a type of delivery which cost more than the least expensive standard delivery offered, this element need not be repaid.

The trader must repay the monies received from the consumer without undue delay and in any event, within 14 days of becoming aware of the cancellation. In the case of sale of goods, the trader may withhold monies until the goods have been received back or until the consumer furnishes evidence that they have been sent back.


Effect of Cancellation; Return of Goods

Unless the consumer otherwise agrees, the trader must use the same means of payment to make the refund, as was used in the contract.  If the consumer agrees to an alternative method of repayment, he must not incur any fees as a result of the use of that different means.  Contravention of the above obligations is an offence.  The trader is civilly liable to reimburse the monies to the consumer.

The trader must collect the goods where it has offered to collect them, or in the case of an off-premises contract, where the goods were delivered to the consumer’s home at the time of making the contract and the nature of the goods is such that they cannot normally be returned by post.  If the trader is obliged to collect the goods, then it must do so at its own expense.

The consumer is obliged to return the goods in other cases.  He must do so by handing them back or by delivering them to the trader, or to is authorised representative.  The goods must be returned without due delay and in any event, within 14 calendar days of the exercise of the right of cancellation.  The consumer must pay the cost of returning the goods, unless the trader has agreed to bear them or has failed to inform the consumer in the information requirements, that he would bear the costs.


Duty re Goods and Payment Obligations arising from Use

The consumer must take reasonable care of the goods before returning them.  He is liable for any reduction in the value of the goods, resulting from the handling of the goods beyond that necessary to establish their characteristics and functioning.

There is a requirement to pay fair compensation if the consumer has had the use of the goods in a manner incompatible with good faith, or such as to constitute unjust enrichment.  This is a matter for the domestic courts.  The amount payable must not be such as to deny the effectiveness of the right.

The liability to pay compensation does not arise where the trader has failed to provide the requisite information on the right to cancel, prior to contract. The cancellation period is increased to 12 months from the day it would otherwise have expired if the consumer has not been given notice of the right to cancellation.  The trader may have a civil action against the consumer for failure to take reasonable care of the goods, or for failure to return them.


Consumer’s Obligation and pro rata Payment for Services

In the case of service contracts, contracts for district heating and for supply of water, gas and electricity, where the consumer requests performance of the contract to begin during the cancellation period, by express request made in a durable medium, then if the consumer cancels the contract during the cooling off period, before it is fully performed, the consumer must pay a proportionate amount or what has been provided, prior to notification of cancellation.  This is calculated on the basis of the total price agreed or in the case of an excessive price, the market value of the service.

If the trader does not provide the consumer with the information on the right to cancel, or on its liability to pay a reasonable cost for performance during the contract period or the consumer has not expressly requested performance to begin, then the consumer is not liable for the proportionate part of the price.


Digital Content

In the case of a contract for the supply of digital content during the cancellation period, the consumer becomes liable to pay in full or in part as the cases may be if the following conditions are satisfied:

  • the consumer has given express prior consent to the commencement of performance of the digital content in the cancellation period;
  • where the consumer has acknowledged in giving his consent to commencement of performance, that the right of cancellation is lost;
  • provided that the trader had provided prior express confirmation to the consumer of these requirements and of their effect.

Effect of Exercise of Cancellation Right

Where the cancellation right is exercised, ancillary contracts are cancelled.  An ancillary contract is a contract under which the consumer acquires goods and services related to a distance or off-premises contract and the goods are supplied or service is provided by the trader or by a third-party on the basis of an arrangement between the third-party and trader. They may include warranties and insurance certificates.

The trader is obliged to notify other traders with whom the consumer has an ancillary contract, of the cancellation of the contract and the termination of the ancillary contract.


Offence of Breach

Breach of the legislation is an offence.  It may be subject to civil enforcement by the Competition and Consumer Protection Commission.  The burden of proof is on the trader to show that the information requirements have been complied with.  Breach of the legislative obligations may also constitute a breach of contract.

Where the non-compliance relates to the costs of return, the consumer is not civilly liable for those additional charges. Breach of the legislative obligations may also constitute a breach of contract. Where the non-compliance relates to the costs of return, the consumer is not civilly liable for those additional charges.


References and Sources

Irish Texts

Consumer Law Rights & Regulation    Donnelly & White (2014)

Consumer Protection Act 2007 Annotated  Bird (2008)

Consumer Rights Long (2004)

Commercial & Consumer Law: Annotated Statutes O’Reilly, P (2000)

UK Texts

Consumer Sales Law: The Law Relating to Consumer Sales and Financing of Goods 3rd ed

John MacLeod, James Devenney (2019)

Electronic Consumer Contracts in the Conflict of Laws 2nd ed Zeng Sophia Tang (2018)

The Law of Consumer Redress in an Evolving Digital Market: Upgrading from Alternative to Online Dispute Resolution Pablo Cortes (2017)

Blackstone’s Statutes on Commercial & Consumer Law 2017-2018 Francis Rose

Consumer and Trading Standards: Law and Practice 2017 Bryan Lewin, Jonathan Kirk

Woodroffe and Lowe’s Consumer Law and Practice Woodroffe and Lowe’s Consumer Law and Practice 10th ed Geoffrey Woodroffe, Chris Willett, Christian Twigg-Flesner (2016)

Butterworths Trading and Consumer Law Looseleaf Annual Subscription Deborah L. Parry, Roland Rowell (2016)

Butterworths Commercial and Consumer Law Handbook 8th ed Richard B. Mawrey, Tobias Riley-Smith (2015

Consumer and Trading Standards: Law and Practice 4th ed

Legislation

European Union (Consumer  nformation, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014, S.I. No. 250 of 2014

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2016, S.I. No. 336 of 2016

Competition and Consumer Protection Act 2014 (Commencement) Order 2014, S.I. No. 366 of 2014

Competition and Consumer Protection Act 2014 (Establishment Day) Order 2014, S.I. No. 367 of 2014

Consumer Protection Act 2007 (Grocery Goods Undertakings) Regulations 2016, S.I. No. 35 of 2016

Consumer Protection Act 2007 (Competition and Consumer Protection Commission) Levy Regulations 2016, S.I. No. 479 of

2016

European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004, S.I. No. 853 of 2004

Circuit Court Rules (Consumer Protection Act 2007) 2008, S.I. No. 585 of 2008

European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010, S.I. No. 555 of 2010

European Communities (Unfair Terms in Consumer Contracts) Amendment) Regulations 2013, S.I. No. 160 of 2013

European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014, S.I. No. 250 of 2014

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2014, S.I. No. 336 of 2014

European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 343 of 2015

European Union (Alternative Dispute Resolution for Consumer Disputes) (No. 2) Regulations 2015, S.I. No. 368 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 500 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2016, S.I. No. 32 of 2016

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2016, S.I. No. 336 of 2016