Consumer Credit
CONSUMER CREDIT ACT 1995
REVISED
Updated to 17 June 2016
This Revised Act is an administrative consolidation of Consumer Credit Act 1995. It is prepared by the Law Reform Commission in accordance with its function under Law Reform Commission Act 1975 (3/1975) to keep the law under review and to undertake revision and consolidation of statute law.
All Acts up to and including Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 (4/2016), enacted 11 February 2016, and all statutory instruments up to and including Consumer Credit Act 1995 (Section 2) Regulations 2016 (S.I. No. 325 of 2016), made 17 June 2016, were considered in the preparation of this Revised Act.
Disclaimer: While every care has been taken in the preparation of this Revised Act, the Law Reform Commission can assume no responsibility for and give no guarantees, undertakings or warranties concerning the accuracy, completeness or up to date nature of the information provided and does not accept any liability whatsoever arising from any errors or omissions. Please notify any errors, omissions and comments by email to
PART I
Preliminary and General
Short title and commencement.
1.— (1) This Act may be cited as the Consumer Credit Act, 1995.
(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes and different provisions.
Annotations:
Editorial Notes:
E7
Power pursuant to subs. (2) exercised (13.05.1996) by Consumer Credit Act, 1995 (Commencement) Order 1996 (S.I. No. 121 of 1996).
2. The 13th day of May, 1996, is hereby appointed as the day on which the Consumer Credit Act, 1995 (No. 24 of 1995), other than section 54 (3) thereof, shall come into operation.
Interpretation.
2.— (1) In this Act, unless the context otherwise requires—
“ the Act of 1980” means the Sale of Goods and Supply of Services Act, 1980;
“ advertisement” includes every form of advertising, whether in a publication, by television or radio, by display of notices, signs, labels, showcards or goods, by distribution of samples, circulars, catalogues, price lists or other material, by exhibition of pictures, models or films, or in any other way, and references to the publishing of advertisements shall be construed accordingly;
“ agreement” means an agreement to which this Act applies;
“ APR” means the annual percentage rate of charge, being the total cost of credit to the consumer, expressed as an annual percentage of the amount of credit granted and calculated in accordance with section 9 ;
F1 [ … ]
F1 [ … ]
F2 [ ‘ Bank ’ means the Central Bank F3 [ … ] ; ]
“ borrower” means a consumer acting as a borrower;
F4 [ ‘ business ’ includes trade and profession; ]
“ business name” means the name or style under which any business is carried on;
“ buyer” means a consumer acting as a buyer;
“ cash” includes money in any form;
“ cash price” means the money consideration for a transaction for the purchase of goods or the supply of a service by a consumer which is not financed by credit;
F1 [ … ]
“ collecting repayments” means, in respect of a moneylending agreement, the collection of repayments in respect of the agreement at a place other than a business premises of the moneylender;
“ company” means—
( a) a company within the meaning of the Companies Acts, 1963 to 1990, or
( b) a body established under the laws of a state other than the State and corresponding to a body referred to in paragraph (a);
F5 [ ‘ consumer ’ means —
( a ) a natural person acting outside the person’s business, or
( b ) any person, or person of a class, declared to be a consumer in an order made under subsection (9); ]
“ consumer-hire agreement” means an agreement of more than three months duration for the bailment of goods to a hirer under which the property in the goods remains with the owner;
“ contract of guarantee” means, in relation to any agreement, a contract, made at the request express or implied of the consumer, to guarantee the performance of the consumer’s obligations under the agreement, and the expression “ guarantor” shall be construed accordingly;
“ cooling-off period” has the meaning assigned to it by section 50 ;
“ the Council Directive” means Council Directive No. 87/102/EEC of 22 December 1986(1), for the approximation of the laws, regulations and administrative provisions of the Member States of the European Communities concerning consumer credit, F6 [ as amended by Council Directive No. 90/88/EEC of 22 February 1990 (2) and Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 (3) , the texts of which are set out for convenience of reference F6 [ in Parts I, II and III , respectively, of the First Schedule ; ]
“ credit” includes a deferred payment, cash loan F7 [ or other similar financial accommodation ];
“ credit agreement” means an agreement whereby a creditor grants or promises to grant to a consumer a credit in the form of a deferred payment, a cash loan or other similar financial accommodation;
“ credit card” means a card issued by a credit institution or other person to an individual by means of which goods, services or cash may be obtained by the individual on credit and amounts in respect of the goods, services or cash may be charged to the credit card account of the individual maintained by the credit institution or other person;
“ credit institution” means—
( a) the holder of a licence granted under section 9 of the Central Bank Act, 1971,
( b) a body licensed to carry on banking under regulations made under the European Communities Act, 1972,
( c) a building society incorporated or deemed to be incorporated under section 10 of the Building Societies Act, 1989,
( d) a society licensed to carry on the business of a trustee savings bank under section 10 of the Trustee Savings Banks Act, 1989,
F2 [ ( e ) such person or class of persons as may be prescribed by the Bank for the purposes of this Act; ]
( e) F8 [ … ]
( f) F9 [ … ]
( g) F1 [ … ]
“ credit intermediary” means a person, other than a credit institution or a mortgage lender, who in the course of his business arranges or offers to arrange for a consumer the provision of credit or the letting of goods in return for a commission, payment or consideration of any kind from the provider of the credit or the owner, as the case may be;
“ credit intermediaries authorisation” means an authorisation granted under section 144 ;
“ credit-sale agreement” means a credit agreement for the sale of goods under which the purchase price or part of it is payable in instalments and the property in the goods passes to the buyer immediately upon the making of the agreement;
“ creditor” means a person who grants credit under a credit agreement in the course of his trade, business or profession, and includes a group of such persons;
“ the Director” means the Director of Consumer Affairs;
“ financial accommodation” includes credit and the letting of goods;
“ functions” includes powers and duties;
“ hirer” means a consumer who takes, intends to take or has taken goods from an owner under a hire-purchase agreement or a consumer-hire agreement in return for periodical payments;
“ hire-purchase agreement” means an agreement for the bailment of goods under which the hirer may buy the goods or under which the property in the goods will, if the terms of the agreement are complied with, pass to the hirer in return for periodical payments; and where by virtue of two or more agreements, none of which by itself constitutes a hire-purchase agreement, there is a bailment of goods and either the hirer may buy the goods, or the property therein will, if the terms of the agreements are complied with, pass to the hirer, the agreements shall be treated for the purpose of this Act as a single agreement made at the time when the last agreement was made;
“ house” includes any building or part of a building used or suitable for use as a dwelling and any outoffice, yard, garden or other land appurtenant thereto or usually enjoyed therewith;
F5 [ ‘ housing loan ’ means —
( a ) an agreement for the provision of credit to a person on the security of a mortgage of a freehold or leasehold estate or interest in land —
(i) for the purpose of enabling the person to have a house constructed on the land as the principal residence of that person or that person’s dependants, or
(ii) for the purpose of enabling the person to improve a house that is already used as the principal residence of that person or that person’s dependants, or
(iii) for the purpose of enabling the person to buy a house that is already constructed on the land for use as the principal residence of that person or that person’s dependants,
or
( b ) an agreement for refinancing credit provided to a person for a purpose specified in paragraph ( a )(i), (ii) or (iii), or
( c ) an agreement for the provision of credit to a person on the security of a mortgage of a freehold or leasehold estate or interest in land on which a house is constructed where the house is to be used, or to continue to be used, as the principal residence of the person or the person’s dependants, or
( d ) an agreement for the provision of credit to a person on the security of a mortgage of a freehold or leasehold estate or interest in land on which a house is, or is to be, constructed where the person to whom the credit is provided is a consumer; ]
“ installation charge” means the charge for—
( a) the installing of any electric line or any gas or water pipe,
( b) the fixing of goods to which the agreement relates to the premises where they are to be used, and the alteration of premises to enable any such goods to be used thereon, and
( c) where it is reasonably necessary that any such goods should be constructed or erected on the premises where they are to be used, any work carried out for the purpose of such construction or erection;
F2 [ ‘ local authority ’ means a local authority for the purposes of the Local Government Act 2001 ; ]
F1 [ … ]
“ moneylender” means a person who carries on the business of moneylending, or who advertises or announces himself or holds himself out in any way as carrying on that business; but does not include—
( a) any pawnbroker in respect of business carried on by him in accordance with the provisions of the Pawnbrokers Act, 1964 (as amended by Part XV ),
( b) a society which is registered as a credit union under the Industrial and Provident Societies Acts, 1893 to 1978, by virtue of the Credit Union Act, 1966,
( c) a registered society within the meaning of the Friendly Societies Acts, 1896 to 1977,
( d) a credit institution,
( e) a person who supplies money for the purchase, sale or hire of goods at an APR which is less than 23 per cent. (or such other rate as may be prescribed),
( f) a mortgage lender;
“ moneylender’s licence” means a licence granted under section 93 ;
“ moneylending” means credit supplied by a moneylender to a consumer on foot of a moneylending agreement;
“ moneylending agreement” means a credit agreement into which a moneylender enters, or offers to enter, with a consumer in which one or more of the following apply:
( a) the agreement was concluded away from the business premises of the moneylender or the business premises of the supplier of goods or services under the agreement,
( b) any negotiations for, or in relation to the credit were conducted at a place other than the business premises of the moneylender or the business premises of the supplier of goods or services under the agreement,
( c) repayments under the agreement will, or may, be paid by the consumer to the moneylender or his representative at any place other than the business premises of the moneylender or the business premises of the supplier of goods or services under the agreement, or
( d) where the total cost of credit to the consumer under the agreement is in excess of an APR of 23 per cent., or such other rate as may be prescribed;
“ mortgage” includes charge;
F5 [ ‘ mortgage lender ’ means a person who carries on a business that consists of or includes making housing loans; ]
F10 [ ‘ mortgage intermediary ’ means a person (other than a mortgage lender or credit institution) who, in return for commission or some other form of consideration —
( a ) arranges, or offers to arrange, for a mortgage lender to provide a consumer with a housing loan, or
( b ) introduces a consumer to an intermediary who arranges, or offers to arrange, for a mortgage lender to provide the consumer with such a loan; ]
“ motor vehicle” means a vehicle intended or adapted for propulsion by mechanical means;
“ owner” means the person who lets or has let goods to a hirer under a hire-purchase agreement or a consumer-hire agreement;
“ partnership” has the meaning assigned to it by the Partnership Act, 1890;
F2 [ ‘ pawnbroker ’ means the holder of a licence granted under section 8 of the Pawnbrokers Act 1964 ; ]
“ premises” includes any building, dwelling, temporary construction, vehicle, ship or aircraft;
“ prescribed” means prescribed by regulations F11 [ made under this Act ] and “ prescribe” shall be construed accordingly;
“ record” means any book, document or any other written or printed material in any form including any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form;
F3 [ … ]
F1 [ … ]
“ running account” means a facility under a credit agreement whereby the consumer is enabled to receive, from time to time, from the creditor or a third party, cash, goods or services to an amount or value such that, taking into account payments made by or to the credit of the consumer, the credit limit (if any) is not at any time exceeded;
“ total cost of credit” means the total cost of the credit to the consumer being all the costs, comprising interest, collection and all other charges, which the consumer has to pay for the credit exclusive of any sum payable as a penalty or as compensation or damages for breach of the agreement;
“ undertaking” means a company, partnership or any other person.
(2) In this Act a reference to a borrower, buyer, consumer, creditor, hirer, owner or seller includes a person to whom the borrower’s, buyer’s, consumer’s, creditor’s, hirer’s, owner’s or seller’s rights or liabilities, as the case may be, under an agreement have passed by assignment or operation of law.
(3) In this Act a reference to a section, Part or Schedule, is a reference to a section or Part of, or Schedule to this Act, unless there is an indication that a reference to any other enactment is intended or otherwise indicated.
(4) In this Act a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless there is an indication that a reference to some other provision is intended.
(5) Any reference in this Act to a term of an agreement includes a reference to a term which although not contained in an agreement is incorporated in the agreement by another term of the agreement.
(6) A word or expression that is used in this Act and is also used in the Council Directive has, unless the contrary intention appears, the meaning in this Act that it has in the Council Directive.
(7) In construing a provision of this Act, a court shall give to it a construction that will give effect to the Council Directive, and for this purpose a court shall have regard to the provisions of the Council Directive, including the preambles.
(8) In this Act a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment.
F4 [ (9) The Minister for Finance may, by order notified in Iris Oifigi ú il , declare any specified person, or any person of a specified class of persons, to be a consumer for the purposes of the definition of ‘ consumer ’ in subsection (1). ]
Annotations:
Amendments:
F1
Deleted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 1, S.I. No. 160 of 2003.
F2
Inserted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 1, S.I. No. 160 of 2003.
F3
Deleted (1.10.2010) by Central Bank Reform Act 2010 (23/2010), s. 15(4) and sch. 2 pt. 4 items 1 and 2, S.I. No. 469 of 2010.
F4
Inserted (1.08.2004) by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 33 and sch. 3 pt. 12 item 1(a), (e), S.I. No. 455 of 2004.
F5
Substituted (1.08.2004) by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 33 and sch. 3 pt. 12 item 1(b), (ba), (d), S.I. No. 455 of 2004.
F6
Substituted (20.09.2000) by European Communities (Consumer Credit) Regulations 2000 (S.I. No. 294 of 2000), reg. 3.
F7
Substituted (23.09.1996) by European Communities (Consumer Credit Act, 1995) (Amendment) Regulations 1996 (S.I. No. 277 of 1996), reg. 2(a).
F8
Deleted (28.02.2002) by ACC Bank Act 2001 (12/2001), s. 12(1) and sch. pt. 1, S.I. No. 69 of 2002.
F9
Deleted (12.02.2001) by ICC Bank Act 2000 (32/2000), s. 7(1) and sch. pt. 1, S.I. No. 46 of 2001.
F10
Substituted (1.01.2005) by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 33 and sch. 3 pt. 12 item 1(c), S.I. No. 455 of 2004.
F11
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 1, S.I. No. 160 of 2003.
Modifications (not altering text):
C3
Definition of credit institution construed (22.11.2010) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2010 (S.I. No. 551 of 2010).
2. (1) BMW Financial Services (Ireland) Limited t/a BMW Financial Services, MINI Financial Services and ALPHERA Financial Services is subject to paragraph (2) of this Regulation, prescribed for the purposes of paragraph (e) of the definition of “credit institution” in Section 2(1) of the Consumer Credit Act 1995 .
(2) BMW Financial Services (Ireland) Limited t/a BMW Financial Services, MINI Financial Services and ALPHERA Financial Services is not to be regarded as prescribed for the forgoing purposes in any cases where the APR charged by it in respect of any credit granted to a consumer equals or exceeds 23 per cent.
C4
Definition of credit institution construed (25.03.2007) by Consumer Credit Act, 1995 (Section 2) (No. 2) Regulations 2007(S.I. No. 138 of 2007).
2. (1) Stepstone Mortgage Funding Limited is subject to paragraph (2) of this Regulation, prescribed for the purposes of paragraph (e) of the definition of “credit institution” in Section 2(1) of the Consumer Credit Act 1995 (as amended by Section 35 (1) and Schedule 1, Part 21 of the Central Bank and Financial Services Authority of Ireland Act, 2003).
(2) Stepstone Mortgage Funding Limited is not to be regarded as prescribed for the forgoing purposes in any cases where the APR charged by it in respect of any credit granted to a consumer equals or exceeds 23 per cent.
C5
Definition of credit institution construed (21.12.2006) by Consumer Credit Act, 1995 (Section 2) (No. 1) Regulations 2006 (S.I. No. 687 of 2006).
2. (1) Springboard Mortgages Limited is subject to paragraph (2) of this Regulation, prescribed for the purposes of paragraph (e) of the definition of “credit institution” in Section 2(1) of the Consumer Credit Act 1995 (as amended by Section 35 (1) and Schedule 1, Part 21 of the Central Bank and Financial Services Authority of Ireland Act, 2003).
(2) Springboard Mortgages Limited is not to be regarded as prescribed for the forgoing purposes in any cases where the APR charged by it in respect of any credit granted to a consumer equals or exceeds 23 per cent.
C6
Definition of credit institution construed (16.11.2004) by Credit Act 1995 (Section 2) (No. 3) Regulations 2004 (S.I. No. 715 of 2004).
2. (1) START MORTGAGES Ltd. is, subject to paragraph (2) of this Regulation, prescribed for the purposes of paragraph (e) of the definition of “credit institution” in Section 2(1) of the Consumer Credit Act 1995 (as amended by section 35(1) and Schedule 1, Part 21 of the Central Bank and Financial Services Authority of Ireland Act 2003 ).
(2) START MORTGAGES Ltd. is not to be regarded as prescribed for the foregoing purposes in any cases where the APR charged by it in respect of any credit granted to a consumer equals or exceeds 23 per cent.
C7
Definition of credit institution construed (16.11.2004) by Consumer Credit Act 1995 (Section 2) Regulations 2002 (S.I. No. 142 of 2002).
2. (1) It is prescribed, subject to paragraph (2) of this Regulation, that the definition of “credit institution” contained in section 2 (1) of the Consumer Credit Act 1995 (No. 24 of 1995), shall (by virtue of paragraph (g) of that definition) include Lombard & Ulster Banking Limited.
(2) The person specified at paragraph (1) is not to be regarded as prescribed for the purposes of that paragraph in any case where the APR charged by the person in respect of any credit granted to a consumer equals or exceeds 23 per cent.
C8
Definition of credit institution construed (7.12.1999) by Consumer Credit Act, 1995 (Section 2) (No. 2) Regulations 1999 (S.I. No. 392 of 1999).
2. The definition of “credit institution” contained in section 2 (1) of the Consumer Credit Act, 1995 (No. 24 of 1995), shall include Open + Direct Retail Services Limited:
Provided that the APR charged by such persons in respect of any credit granted to a consumer is less than 23 per cent.
C9
Definition of credit institution construed (3.12.1996) by Consumer Credit Act, 1995 (Section 2) (No. 2) Regulations 1996 (S.I. No. 369 of 1996), as amended by S.I. Nos. 125 of 2008, art. 2, 322 of 2012, art. 2 and 325 of 2016, art. 2.
2. It is hereby prescribed that the definition of “credit institution” contained in section 2 (1) of the Consumer Credit Act, 1995 (No. 24 of 1995), shall (by virtue of paragraph (g) of that definition) include —
AIB Leasing Limited,
BNP Capital Finance Limited,
Irish Permanent Finance Limited,
[…]
[…]
National Credit Finance Limited,
National Credit Financial Services Limited,
Woodchester Home Loans Limited,
[…]
Motor Leasing Limited,
[…]
[…]
Western Finance Company Limited:
Provided that the APR charged by such person in respect of any credit granted to a consumer is less than 23 per cent.
Editorial Notes:
E8
Power pursuant to subs. (1) exercised (31.07.2015) by Consumer Credit Act 1995 (Section 2) Regulations 2015 (S.I. No. 352 of 2015).
E9
Power pursuant to subs. (1) exercised (25.07.2014) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2014 (S.I. No. 355 of 2014).
E10
Power pursuant to subs. (1) exercised (15.08.2012) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2012 (S.I. No. 322 of 2012).
E11
Power pursuant to subs. (1) exercised (22.11.2010) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2010 (S.I. No. 551 of 2010).
E12
Power pursuant to subs. (1) exercised (30.04.2008) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2008 (S.I. No. 125 of 2008), in effect as per reg. 2.
E13
Power pursuant to subs. (1) exercised (23.03.2007) by Consumer Credit Act 1995 (Section 2) (No. 2) Regulations 2007 (S.I. No. 138 of 2007).
E14
Power pursuant to subs. (1) exercised (21.12.2006) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2006 (S.I. No. 687 of 2006).
E15
Power pursuant to subs. (1) exercised (16.11.2004) by Consumer Credit Act 1995 (Section 2) (No. 3) Regulations 2004 (S.I. No. 715 of 2004).
E16
Power pursuant to subs. (1) exercised (9.04.2002) by Consumer Credit Act 1995 (Section 2 Regulations 2002 (S.I. No. 142 of 2002).
E17
Power pursuant to subs. (1) exercised (7.12.1999) by Consumer Credit Act, 1995 (section 2) (No. 2) Regulations 1999 (S.I. No. 392 of 1999).
E18
Power pursuant to subs. (1) exercised (3.12.1996) by Consumer Credit Act, 1995 (Section 2) (No. 2) Regulations 1996 (S.I. No. 369 of 1996).
E19
Power pursuant to subs. (1) exercised (13.05.1996) by Consumer Credit Act, 1995 (Section 2) Regulations 1996 (S.I. No. 127 of 1996).
E20
Previous affecting provision: power pursuant to subs. (1) exercised (24.09.2007) by Consumer Credit Act 1995 (Section 2) (No. 4) Regulations 2007 (S.I. No. 690 of 2007); revoked (15.08.2012) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2012 (S.I. No. 322 of 2012), reg. 5.
E21
Previous affecting provision: power pursuant to subs. (1) exercised (14.05.2007) by Consumer Credit Act 1995 (Section 2) (No. 4) Regulations 2007 (S.I. No. 751 of 2007); revoked (15.08.2012) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2012 (S.I. No. 322 of 2012), reg. 5.
E22
Previous affecting provision: power pursuant to subs. (1) exercised (30.03.2007) by Consumer Credit Act 1995 (Section 2) (No. 3) Regulations 2007 (S.I. No. 139 of 2007); revoked (15.08.2012) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2012 (S.I. No. 322 of 2012), reg. 5.
E23
Previous affecting provision: power pursuant to subs. (1) exercised (5.03.2007) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2007 (S.I. No. 100 of 2007); revoked (25.07.2014) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2014 (S.I. No. 355 of 2014), reg. 3.
E24
Previous affecting provision: power pursuant to subs. (1) exercised (20.07.2005) by Consumer Credit Act 1995 (Section 2) (Amendment) Regulations 2005 (S.I. No. 372 of 2005); this SI amended S.I. No. 414 of 2004 and became obsolete on its revocation, see E-note below.
E25
Previous affecting provision: power pursuant to subs. (1) exercised (20.07.2005) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2005 (S.I. No. 371 of 2005); revoked (15.08.2012) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2012 (S.I. No. 322 of 2012), reg. 5.
E26
Previous affecting provision: power pursuant to subs. (1) exercised (1.07.2004) by Consumer Credit Act 1995 (Section 2) (No. 2) Regulations 2004 (S.I. No. 414 of 2004); revoked (31.07.2015) by Consumer Credit Act 1995 (Section 2) Regulations 2015 (S.I. No. 352 of 2015), reg. 3.
E27
Previous affecting provision: power pursuant to subs. (1) exercised (4.03.2004) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2004 (S.I. No. 93 of 2004); revoked (30.04.2008) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2008 (S.I. No. 125 of 2008), reg. 5, in effect as per reg. 2.
E28
Previous affecting provision: definition of “regulatory authority” inserted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 1, S.I. No. 160 of 2003; deleted as per F-note above.
E29
Previous affecting provision: power pursuant to subs. (1) exercised (3.07.2002) by Consumer Credit Act 1995 (Section 2 (No. 2) Regulations 2002 (S.I. No. 339 of 2002); revoked (30.04.2008) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2008 (S.I. No. 125 of 2008), reg. 5, in effect as per reg. 5.
E30
Previous affecting provision: power pursuant to subs. (1) exercised (21.09.2001) by Consumer Credit Act, 1995 (Section 2) Regulations 2001 (S.I. No. 432 of 2001); revoked (15.08.2012) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2012 (S.I. No. 322 of 2012), reg. 5.
E31
Previous affecting provision: power pursuant to subs. (1) exercised (20.04.2000) by Consumer Credit Act, 1995 (Section 2) Regulations 2000 (S.I. No. 113 of 2000); revoked (30.04.2008) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2008 (S.I. No. 125 of 2008), reg. 5, in effect as per reg. 2.
E32
Previous affecting provision: power pursuant to subs. (1) exercised (27.01.1999) by Consumer Credit Act, 1995 (section 2) Regulations 1999 (S.I. No. 15 of 1999); revoked (25.07.2014) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2014 (S.I. No. 355 of 2014), reg. 3.
E33
Power pursuant to subs. (1) exercised (13.05.1996) by Consumer Credit Act, 1995 (Section 2) Regulations 1996 (S.I. No. 127 of 1996); revoked (15.08.2012) by Consumer Credit Act 1995 (Section 2) (No. 1) Regulations 2012 (S.I. No. 322 of 2012), reg. 3.
(1) O.J. No. L42,12.2.87, p. 48
(2) O.J. No. C30, 30.1.1997, p. 94.
(3) O.J. No. L101, 1.4.98, p 17, ]
Application.
3.— (1) F12 [ Subject to this Act, ] this Act shall apply to all credit agreements, hire-purchase agreements and consumer-hire agreements to which a consumer is a party.
(2) This Act shall not apply to the following, that is to say—
( a) a credit agreement in relation to credit granted or intended to be granted by—
(i) a society which is registered as a credit union under the Industrial and Provident Societies Acts, 1893 to 1978, by virtue of the Credit Union Act, 1966,
(ii) any registered society within the meaning of the Friendly Societies Acts, 1896 to 1977,
F13 [ except where the interest of the credit union or registered society in all or any part of the credit concerned has been directly or indirectly assigned or otherwise disposed of to any person that is not a credit union or registered society, ]
F14 [ ( aa ) any transaction or proposed transaction conducted in the course of relevant trading operations within the meaning of section 39A (inserted by section 17 of the Finance Act, 1981 ) of the Finance Act, 1980 , or within the meaning of section 39B (inserted by section 30 of the Finance Act, 1987 ) of the Finance Act, 1980 . ]
( b) a credit agreement in the form of an authentic act signed before a notary public or a judge,
F15 [ ( c ) any transaction entered into by a pawnbroker in respect of a pledge on which a loan or advance is made or to be made, or anything done with a view to such a transaction being entered into, ]
( d) an agreement for the provision on a continuing basis of a service or a utility where the consumer has the right to pay for it, by means of instalments or deferred payments,
( e) credit granted or made available without payment of interest or any other charge other than by a seller of goods who has invited by advertisement consumers to avail of such credit,
F16 [ ( ea ) payments of ancillary State support advanced by the Health Service Executive under the Nursing Homes Support Scheme Act 2009, ]
( f) a credit agreement other than a credit agreement operated by means of a credit card under which no interest is charged provided the consumer agrees to repay the credit in a single payment, or
( g) a credit agreement between an employer and an employee made on terms which are more favourable to the employee than terms offered generally to the public in the normal course of business.
(3) F15 [ ( a ) The provisions of this Act may be applied to housing loans advanced by a local authority only by regulations made by the Minister for Finance after consultation with the Minister for the Environment and Local Government. Different provisions may be applied at different times to different classes of loans, by reference to such matters as that Minister considers appropriate. ].
( b) A loan, not secured by mortgage, made by a local authority for the purposes of carrying out improvement works (within the meaning of section 1 of the Housing (Miscellaneous Provisions) Act, 1979) to a house shall be regarded as a housing loan (within the meaning of this Act) for the purposes of this Act.
Annotations:
Amendments:
F12
Substituted (23.09.1996) by European Communities (Consumer Credit Act, 1995) (Amendment) Regulations 1996 (S.I. No. 277 of 1996), reg. 2(b).
F13
Inserted (8.07.2015) by Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 (21/2015), s. 8, commenced on enactment.
F14
Inserted (9.04.1997) by Central Bank Act 1997 (8/1997), s. 60, S.I. No. 150 of 1997.
F15
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 2, S.I. No. 160 of 2003.
F16
Inserted (27.10.2009) by Nursing Homes Support Scheme Act 2009 (15/2009), s. 37, S.I. No. 423 of 2009.
Editorial Notes:
E34
Power pursuant to subs. (3)(a) exercised (1.09.1997) by Consumer Credit Act, 1995 (Section 3) Regulations 1997 (S.I. No. 186 of 1987), in effect as per reg. 2.
F17 [ PART IA
Responsibilities and Powers of Director of Consumer Affairs ]
Annotations:
Amendments:
F17
Inserted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 3, S.I. No. 160 of 2003.
PART II
Advertising and Offering of Financial Accommodation
Annotations:
Modifications (not altering text):
C11
Application of Part restricted (21.03.2016) by European Union (Consumer Mortgage Credit Agreements) Regulations 2016 (S.I. No. 142 of 2016), reg. 11(3).
General provisions applicable to advertising and marketing and provision concerning Consumer Credit Act 1995’s application
11. …
(3) To the extent that a provision of Part II of the Consumer Credit Act 1995 (No.24 of 1995) is inconsistent with a provision of this Part, that provision of that Part II shall not apply as respects credit agreements to which these Regulations apply.
C12
Application of Part modified (11.06.2010) by European Communities (Consumer Credit Agreements) Regulations 2010 (S.I. No. 281 of 2010), reg. 4(1), in effect as per reg. 2.
Relationship of Parts 2 to 7 of these Regulations with Consumer Credit Act 1995
4. (1) For the application of Part II of the Consumer Credit Act 1995 (No. 24 of 1995) (in this Regulation called “the Act of 1995”) to advertising to which Regulation 7 applies, the annual percentage rate (in that Part called “APR”) shall be determined in accordance with the definition of “annual percentage rate of charge” in Regulation 6(1) and the formulae set out in Schedule 1.
…
Application of Part II.
20.— (1) Subject to subsection (2), this Part applies to any advertisement, published or displayed for the purpose of a business carried on by the advertiser indicating willingness to—
( a) provide or to arrange the provision of credit,
( b) enter into a hire-purchase or consumer-hire agreement for the letting of goods by the advertiser, or
( c) arrange the letting of goods under a hire-purchase or consumer-hire agreement by another person,
to a consumer.
(2) This Part does not apply to any advertisement published or displayed by a society referred to in section 3 (2) (a) .
Credit advertisements.
21.— (1) An advertisement in which a person offers to provide or arrange the provision of credit shall, if mentioning a rate of interest F54 [ or making any claim in relation to the cost of credit ], contain a clear and prominent statement of the APR, using a representative example if no other means is practicable, F54 [ provided it is indicated that this is only a representative example, ] and no other rate of interest shall be included in the advertisement.
(2) The statement of the APR included in any advertisement to which subsection (1) applies shall be afforded in the advertisement no less prominence than a statement relating to—
( a) any period over which payment is to be made,
( b) the amount of any advance payment or the fact that no advance payment is required, and
( c) the amount, number or frequency of any other payments or charges (other than the cash price of the goods or services) or of any repayments.
(3) An advertisement (other than one relating to a housing loan) shall, where the credit offered is subject to conditions involving the payment of any charges other than the repayment of capital and interest on the sum borrowed, specify those conditions.
(4) An advertisement shall, if any security is required or is required in specific circumstances in relation to the credit offered, state that such security is required.
(5) Notwithstanding section 7 of the Consumer Information Act, 1978, it shall not be an offence for a person to provide credit at a lower rate than the rate advertised.
(6) Where an advertisement refers to the availability of credit and the credit is subject to any restrictions, those restrictions shall be clearly indicated.
Annotations:
Amendments:
F54
Inserted (8.08.1996) by Consumer Credit Act, 1995 (Section 28) Regulations 1996 (S.I. No. 245 of 1996), reg. 2.
Advertising of financial accommodation related to goods or services.
22.— Where an advertisement refers to the availability of a financial accommodation in relation to the acquisition of goods or the provision of a service, it shall include F55 [ , where applicable, ] a statement of—
( a) the nature of the financial accommodation,
( b) the cash price of the goods or service,
F56 [ (c)the APR and the total cost of credit or the hire-purchase price, ]
( d) the number and amount of instalments,
( e) the duration of the intervals between instalment payments,
( f) the number of any instalments which have to be paid before delivery of the goods, and
( g) details of any deposit payable.
Annotations:
Amendments:
F55
Inserted (8.08.1996) by Consumer Credit Act, 1995 (Section 28) Regulations 1996 (S.I. No. 245 of 1996), reg. 3(a).
F56
Substituted (8.08.1996) by Consumer Credit Act, 1995 (Section 28) Regulations 1996 (S.I. No. 245 of 1996), reg. 3(b).
Advertising of consumer-hire agreements.
23.— (1) An advertisement in which a person offers to arrange the letting of goods under a consumer-hire agreement or indicates the availability of such a letting shall include a statement to the effect that the agreement is for letting, hiring or leasing only and the goods remain the property of the owner,
(i) which shall be afforded no less prominence than the sum of any amount payable by the hirer, and
(ii) in the case of a visual advertisement, shall be enclosed by a boxed boundary line.
(2) Where any figures relating to the amount payable by a hirer under a consumer-hire agreement are indicated in any advertisement to which subsection (1) applies, those figures shall be clearly displayed and shall be fully inclusive of all amounts payable, including taxes.
(3) Where any figures relating to the amount payable by a hirer under a consumer-hire agreement are indicated in any advertisement to which subsection (1) applies, and those figures indicate the amount payable for part of the agreement only, that fact shall also be clearly indicated in the advertisement.
Comparative advertising.
24.— Where an advertisement purports to compare the level of repayments or cost under one or more forms of financial accommodation, the advertisement shall contain the relevant terms of each of the forms of financial accommodation referred to in the advertisement.
Advertising of credit as being without charge.
25.— An advertisement shall not describe credit as being without interest, or any other charge, if the availability of the credit is dependent on the consumer concluding with the creditor or any other person a maintenance contract (for any goods involved) or an insurance contract or on any other condition, compliance with which would, or would be likely in the future to, involve the consumer in any cost additional to that payable if the goods were bought for cash.
Advertising of financial accommodation to comply with this Part.
26.— (1) A person shall not display or publish or cause to be displayed or published an advertisement to which this Part applies which does not comply with this Part.
(2) In any proceedings for contravening subsection (1), it shall be a defence for the accused, being a person other than the provider of credit, to show that he is a person whose business it is to publish or arrange for the publication of advertisements and that he received the advertisement in question for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would constitute a contravention of subsection (1).
(3) For the purposes of this section an advertisement published by displaying it shall be treated as published on every day on which it is displayed.
Obligation on provider of financial accommodation to ensure advertisements comply with Part.
27.— (1) Where the provider of a financial accommodation, in respect of any financial accommodation provided by him through a credit intermediary, has devised any part of an advertisement or supplied, or has been requested to supply, information in relation to it, but is not the advertiser, the provider shall ensure the advertisement displayed or published complies with this Part.
(2) In any proceedings for contravening this section it shall be a defence for the accused being the provider of a financial accommodation in relation to an advertisement which does not comply with this Part to show that it was displayed or published without his consent or connivance or that he made reasonable efforts to ensure that it complied with this Part or to prevent its publication.
F57 [
Regulations relating to advertising availability and cost of credit.
28. — (1) The Bank may make regulations amending section 21 , 22 , 23 , 24 or 25 with respect to the form or content of advertisements relating to the availability or the cost or the provision of credit to consumers.
(2) The Bank may exercise the power conferred by subsection (1) only after consulting with, or at the request of, the Director and only after obtaining the consent of the Minister for Finance.
(3) The Bank shall consult the Minister for the Environment and Local Government before making regulations under this section relating to housing loans. ]
Annotations:
Amendments:
F57
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 11, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 23(1).
Editorial Notes:
E38
Power pursuant to section exercised (8.08.1996) by Consumer Credit Act, 1995 (Section 28) Regulations 1996 (S.I. No. 245 of 1996).
PART III
Requirements Relating to Credit Agreements and Form and Contents thereof
Annotations:
Modifications (not altering text):
C13
Application of Part restricted (11.06.2010) by European Communities (Consumer Credit Agreements) Regulations 2010 (S.I. No. 281 of 2010), reg. 4(2), (4), in effect as per reg. 2, as substituted (20.12.2012) by European Union (Consumer Credit Agreements) (Amendment) Regulations 2012 (S.I. No. 579 of 2012), reg. 2(c).
Relationship of Parts 2 to 7 of these Regulations with Consumer Credit Act 1995
4. …
[(2) Subject to paragraph (4), parts III (other than sections 30(1) and (4)), IV (other than sections 42, 46, 47 and 48) and V of the Act of 1995 do not apply in relation to a credit agreement to which Parts 2 to 7 apply. ]
…
[(4) Paragraph (2) does not affect the operation of any provision of Part III, IV or V of the Act of 1995 in relation to a contract of guarantee that relates to a credit agreement. ]
(5) Nothing in this Regulation affects the operation of any provision of the Act of 1995 in relation to advertising, or a credit agreement, to which Parts 2 to 7 of these Regulations do not apply.
…
Application of Part III .
29.— This Part shall apply to all credit agreements other than housing loans.
General requirements relating to contents of credit agreements.
30.— (1) A credit agreement and any contract of guarantee relating thereto shall be made in writing and signed by the consumer and by or on behalf of all other parties to the agreement, and—
F58 [ ( a ) a copy of the agreement shall be sent to the consumer by the creditor within 10 days of the making of the agreement, and
( b ) in the case of any contract of guarantee relating to the agreement, a copy of the guarantee and the agreement shall be sent to the guarantor by the creditor within 10 days of the making of the contract. ]
(2) A credit agreement shall contain a statement in respect of the cooling-off period that the consumer—
( a) has a right to withdraw from the agreement without penalty if the consumer gives written notice to this effect to the creditor within a period of 10 days of the date of receipt by the consumer of a copy of the agreement, or
( b) may indicate that he does not wish to exercise this right by signing a statement to this effect, this signature to be separate from, and additional to, the consumer’s signature in relation to any of the terms of the agreement.
(3) A credit agreement shall contain a statement of—
( a) the names and addresses of all the parties to the agreement, and
( b) any costs or penalties to which the consumer may become liable for any failure by the consumer to comply with the terms of the agreement.
(4) This section does not apply to credit in the form of advances on a current account, or on credit card accounts.
Annotations:
Amendments:
F58
Substituted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 76, S.I. No. 287 of 2013.
Contents of credit agreements for cash loans.
31.— (1) A credit agreement for a cash loan, other than an advance on a current account, or a credit card account shall contain a statement of the following—
( a) the amount of the credit lent under the agreement,
( b) the date the credit is to be advanced, (if known),
( c) the amount of each repayment instalment,
( d) the rate of interest charged and the APR,
( e) the conditions under which the APR may be changed,
( f) any charges not included in the calculation of the APR but which have to be paid by the borrower in certain given circumstances,
( g) the number of repayment instalments,
( h) the date, or the method of determining the date, upon which each repayment instalment is payable,
( i) the total amount payable in respect of the loan,
( j) the date of expiry of the loan,
( k) the means and the cost of any termination by the borrower of the agreement before the final repayment instalment.
(2) A credit agreement operated by means of a credit card or a running account shall contain a statement of—
( a) the amount of the credit limit, if any, F59 [ at the commencement of the agreement and any conditions in relation to any variation of the limit, ]
( b) the rate of interest charged and the APR,
( c) the terms of use and repayment, and
( d) the means and the cost of termination of the agreement.
Annotations:
Amendments:
F59
Inserted (13.05.1996) by Consumer Credit Act, 1995 (Section 37) Regulations 1996 (S.I. No. 129 of 1996), reg. 2.
Requirements relating to credit-sale agreements.
32.— (1) Before any credit-sale agreement is entered into in respect of the sale of goods the seller shall state in writing the cash price to the prospective buyer, otherwise than in the agreement.
(2) Subsection (1) shall be deemed to have been complied with—
( a) if the buyer has inspected the goods or like goods and at the time of his inspection tickets or labels were attached to or displayed with the goods clearly stating the cash price, either of the goods as a whole or of all the different articles or sets of articles comprised therein, or
( b) if the buyer has selected the goods by reference to a catalogue, price list or advertisement, which clearly stated the cash price either of the goods as a whole or of all the different articles or sets of articles comprised therein.
(3) A credit-sale agreement shall contain a statement of—
( a) the total cost of credit,
( b) the cash price of the goods to which the agreement relates,
( c) the amount of each of the instalments by which the total cost of credit is to be paid,
( d) the date, or the method of determining the date, upon which each instalment is payable,
( e) the number of instalments,
( f) the cost of any termination of the agreement by the buyer before final payment, and
( g) where applicable—
(i) the rate of interest charged and the APR,
(ii) the conditions under which the APR may be changed.
(4) A credit-sale agreement shall contain a description of the goods to which the agreement relates sufficient to identify them.
(5) A credit-sale agreement shall contain in a prominent position the words “ Credit-Sale Agreement ”.
Avoidance of certain provisions in credit-sale agreements.
33.— Any provision in any credit-sale agreement whereby—
( a) any person acting on behalf of a seller in connection with the formation or conclusion of a credit-sale agreement is treated or is deemed to be the agent of the buyer, or
( b) a seller is relieved from liability for the acts or defaults of any person acting on the seller’s behalf in connection with the formation or conclusion of a credit-sale agreement,
shall be void.
Requirements relating to contents of contracts for services.
34.— A credit agreement which is a contract for the supply of services, other than financial services, shall contain—
( a) a statement of—
(i) the total cost of credit,
(ii) the cash price of the services to which the agreement relates,
(iii) the amount of each instalment by which the total cost of credit is to be paid,
(iv) the date, or the method of determining the date, upon which each instalment is payable,
(v) the means and the cost of any termination of the agreement by the consumer before final payment, and
(vi) where applicable—
(I) the rate of interest charged, and
(II) the conditions under which the APR may be changed, and
( b) a description of the services (including any goods) to be supplied to which the agreement relates.
Advances on current account.
35.— (1) A consumer shall be informed by the creditor at the time, or before, an agreement is made in respect of the granting of credit in the form of an advance on a current account F60 [ including an overdraft ] granted by a credit institution, other than on credit card accounts, of—
( a) the credit limit, if any, F60 [ at the commencement of the agreement and any conditions in relation to any variation of the limit, ]
( b) the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended, and
( c) the procedure for determining the agreement.
(2) The information required under subsection (1) shall be confirmed by the creditor in writing to the consumer within 10 days of the making of the agreement, and during the period of the agreement, the consumer shall be informed by the creditor of any change in the annual rate of interest or in the relevant charges at or before the time such change occurs and such information may be given in a statement of account or in an advertisement published in a national newspaper published and circulating in the State.
(3) ( a) Where any sum is advanced to a consumer by way of an overdraft tacitly accepted by both parties which extends beyond a period of three consecutive months, he shall be informed of the annual rate of interest and other charges applicable and of any subsequent amendment of those charges.
( b) The information required to be given in paragraph (a) may be given in a statement of account or in an advertisement published in a national newspaper published and circulating in the State.
Annotations:
Amendments:
F60
Inserted (13.05.1996) by Consumer Credit Act, 1995 (Section 37) Regulations 1996 (S.I. No. 129 of 1996), reg. 3.
Notice of important information to be included in credit agreements.
36.— A credit agreement other than an overdraft facility, a credit-sale agreement or a moneylending agreement shall contain, on the front page of the agreement, a notice in the form set out in Part I of the Third Schedule or such other form as may be prescribed.
Annotations:
Editorial Notes:
E39
Power pursuant to section exercised (13.05.1996) by Consumer Credit Act, 1995 (Section 36) Regulations 1996 (S.I. No. 128 of 1996).
F61 [
Regulations relating to form and content of credit agreements.
37. — (1) The Bank may make regulations amending section 30 , 31 , 32(3) to 32(5) , 34 or 35 with respect to the form or content of credit agreements.
(2) The Bank may exercise the power conferred by subsection (1) only after consulting with, or at the request of, the Director and only after obtaining the consent of the Minister for Finance. ]
Annotations:
Amendments:
F61
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 12, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 23(1).
Editorial Notes:
E40
Power pursuant to section exercised (13.05.1996) by Consumer Credit Act, 1995 (Section 37) Regulations 1996 (S.I. No. 129 of 1996).
Enforceability.
38.— A creditor shall not be entitled to enforce a credit agreement or any contract of guarantee relating thereto, and no security given by the consumer in respect of money payable under the credit agreement or given by a guarantor in respect of money payable under such contract of guarantee as aforesaid shall be enforceable against the consumer or guarantor by any holder thereof, unless the requirements specified in this Part have been complied with:
Provided that if a court is satisfied in any action that a failure to comply with any of the aforesaid requirements, other than section 30 , was not deliberate and has not prejudiced the consumer, and that it would be just and equitable to dispense with the requirement, the court may, subject to any conditions that it sees fit to impose, decide that the agreement shall be enforceable.
Obligations on creditors to comply with Part III .
39.— A creditor being a credit institution, a moneylender or whose business or trade is or includes the sale of goods or supply of services who is a party to a credit agreement to which this Part applies shall ensure that the agreement complies with this Part and any regulations made under section 37 .
PART IV
Matters Arising During Currency of Agreements
Annotations:
Modifications (not altering text):
C14
Application of Part restricted (11.06.2010) by European Communities (Consumer Credit Agreements) Regulations 2010 (S.I. No. 281 of 2010), reg. 4(2), (4), in effect as per reg. 2, as substituted (20.12.2012) by European Union (Consumer Credit Agreements) (Amendment) Regulations 2012 (S.I. No. 579 of 2012), reg. 2(c).
Relationship of Parts 2 to 7 of these Regulations with Consumer Credit Act 1995
4. …
[(2) Subject to paragraph (4), parts III (other than sections 30(1) and (4)), IV (other than sections 42, 46, 47 and 48) and V of the Act of 1995 do not apply in relation to a credit agreement to which Parts 2 to 7 apply. ]
…
[(4) Paragraph (2) does not affect the operation of any provision of Part III, IV or V of the Act of 1995 in relation to a contract of guarantee that relates to a credit agreement. ]
(5) Nothing in this Regulation affects the operation of any provision of the Act of 1995 in relation to advertising, or a credit agreement, to which Parts 2 to 7 of these Regulations do not apply.
…
Assignment of creditor’s or owner’s rights.
40.— Where a creditor’s or owner’s rights under an agreement are assigned to a third person, the consumer shall be entitled to plead against that third person any defence which was available to him against the original creditor including set-off.
Use of bills of exchange, etc.
41.— (1) Where a bill of exchange or a promissory note is given to a creditor by a consumer as part of, or in connection with, a credit agreement, or is given as security for a credit agreement, the existence of the bill or note shall not affect the rights and protections available to the consumer by virtue of this Act.
(2) Where a bill of exchange or a promissory note is negotiated by the creditor to a third party, the consumer may, notwithstanding anything in the Bills of Exchange Act, 1882, in any proceedings for the enforcement of the bill or note, plead against that third party any defence available to him against the creditor.
Liability regarding goods and services.
42.— (1) The existence of a credit agreement shall not in any way affect the rights of the consumer under the Act of 1980 against the supplier of goods or services purchased by means of such an agreement in cases where the goods or services are not supplied or are otherwise not in conformity with the contract for their supply.
(2) Where—
( a) in order to buy goods or obtain services, a consumer enters into a credit agreement with a person other than the supplier of them,
( b) the creditor and the supplier of the goods or services have a pre-existing agreement whereunder credit is made available exclusively by that creditor to customers of that supplier for the acquisition of goods or services from the supplier,
( c) the consumer referred to in paragraph (a) obtains his credit pursuant to that pre-existing agreement,
( d) the goods or services covered by the credit agreement are not supplied, or are supplied only in part, or are not in conformity with the contract for the supply of them, and
( e) the consumer has pursued his remedies against the supplier but has failed to obtain the satisfaction to which he is entitled,
the consumer shall have the right to take proceedings against the creditor.
(3) This section does not apply to housing loans.
Duty to supply documents and information.
43.— (1) Subject to this section, a creditor or an owner shall during the currency of the agreement provide, within 10 days of receipt of a written request by a consumer who is party to the agreement or if that consumer so requires any person specified by him in the request, a copy of the written agreement or a statement of—
( a) the amount paid,
( b) the amount, if any, due but unpaid, and the date and amount of each instalment that remains unpaid, and
( c) the total amount outstanding and the date and amount of each outstanding instalment,
under the agreement.
(2) A creditor or an owner shall not, without reasonable cause, fail to comply within 10 days with a request under subsection (1).
(3) If the default described in subsection (2) continues for a further period of 14 days, then while the default so continues, the creditor or the owner, as the case may be, shall not be entitled to enforce the agreement, or any right to recover goods, and any person shall not be entitled to enforce a security given under the agreement.
(4) Subsection (1) does not apply to a request made less than 4 weeks after a previous request under that subsection relating to the same credit agreement which was complied with.
F62 [ (5) A request referred to in subsection (1) must be accompanied by a fee of € 2.50 or, if some other amount is specified in a regulation made by the Bank for the purposes of this subsection, that other amount. The Bank may make such a regulation only after consulting the Director. ]
(6) Subsection (5) shall not apply where the request is in relation to a moneylending agreement.
(7) This section does not apply to a housing loan.
Annotations:
Amendments:
F62
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12./2003), s. 35(1) and sch. 1 pt. 21 item 13, S.I. No. 160 of 2003.
Appropriation of payments.
44.— (1) Subject to subsection (3), where there are two or more agreements between a consumer and the same creditor or owner and where the consumer makes a payment which is not sufficient to discharge the amount then due under all the agreements, the consumer shall be entitled to appropriate the payment towards the agreements as he sees fit and, if he fails to do so, the payment shall, subject to subsection (2), be appropriated by the creditor or owner, as the case may be, towards the agreements in proportion to the amounts due under the agreements.
(2) Where all the agreements to which subsection (1) applies are hire-purchase agreements, and one-third of the hire-purchase price has been paid under each of the agreements, the owner may, if the hirer has failed to do so, appropriate the payment as he sees fit otherwise the payment shall, by virtue of subsection (1), be appropriated towards the agreements in proportion to the amounts due under the agreements.
(3) This section does not apply where any of the agreements is a housing loan.
Restrictions on written communications.
45.— (1) A creditor, owner or a person acting on his behalf shall not send to a consumer any F63 [ communication on paper ] relating to a credit agreement with that consumer unless the communication is sent in a sealed envelope having nothing written or printed thereon, other than—
( a) the name and address of the consumer, and
( b) at the discretion of the sender—
(i) the words “ personal” or “ private”, and
(ii) a P.O. Box number together with, if desired by the sender, the words “ If undelivered please return to” or similar words.
(2) Subject to subsection (3), a creditor, owner or a person acting on his behalf shall not send any written communication in connection with an agreement with that consumer to the consumer’s employer or to any member of the consumer’s family unless that employer or family member is a party to the agreement.
(3) Where the agreement referred to in subsection (2) is a housing loan, the creditor or a person acting on his behalf may—
( a) for the purposes of the Family Home Protection Act, 1976, send any written communication connected with the agreement to the consumer’s spouse, or
F64 [ ( aa ) for the purposes of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, send any written communication connected with the agreement to the consumer ’ s civil partner, or ]
( b) where the written consent of the consumer has been given, send any written communication connected with the agreement to any member of the consumer’s family or to a person designated by the consumer.
Annotations:
Amendments:
F63
Substituted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 77, S.I. No. 287 of 2013.
F64
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 168 and sch. pt. 3 item 21, S.I. No. 648 of 2010.
Visits and telephone calls.
46.— A creditor, owner or a person acting on his behalf shall not visit or telephone—
( a) a consumer without his consent—
(i) at his place of employment or business unless the consumer resides at that place and all reasonable efforts to make contact with him have failed,
(ii) at any place,
(I) between the hours of 9 o’clock in the evening on any week day and 9 o’clock in the morning on the following day, or
(II) at any time on a Sunday or a public holiday (within the meaning of the Holidays (Employees) Act, 1973),
( b) a consumer’s employer or any member of the consumer’s family unless that employer or family member is a party to the agreement, without the consent of the consumer, given in writing and separate from any other term of agreement,
for any purposes connected with an agreement other than the service of a document in connection with legal proceedings.
Excessive rates of charge for credit.
47.— (1) A consumer or a person acting on the consumer’s behalf may apply to the Circuit Court in whose Circuit the consumer resides or in which the agreement was made, for a declaration that the total cost of credit provided for in any agreement is excessive.
(2) Subject to this section, the Circuit Court may decide in any particular case coming before it, by an application under subsection (1), that the total cost of credit provided for in any credit agreement is excessive.
(3) In making the decision referred to in subsection (2) the court shall have regard to all relevant factors including—
( a) interest rates prevailing at the time the agreement was made or, where applicable, interest rates prevailing at any time during the currency of the agreement,
( b) the age, business competence and level of literacy and numeracy of the consumer,
( c) the degree of risk involved for the creditor and the security provided,
( d) the creditor’s costs including the cost of collecting repayments, and
( e) the extent of competition for the type of credit concerned.
(4) This section does not apply to any credit agreement relating to credit advanced by a credit institution or a mortgage lender.
F65 [ (5) If an application is made under subsection (1) in relation to a credit agreement, the Circuit Court may not make a declaration under this section unless it has given the Bank an opportunity to be heard at the hearing to determine the application. ]
Annotations:
Amendments:
F65
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 14, S.I. No. 160 of 2003.
Power of court to re-open credit agreement where charge is excessive.
48.— (1) Where the Circuit Court has decided by virtue of section 47 , that the total cost of credit is excessive, it may re-open the credit agreement so as to do justice between the parties and may decide to do any one or more of the following:
( a) relieve the consumer from payment of any sum in excess of the sum adjudged by the court to be fairly due in respect of such total cost of credit;
( b) set aside, either wholly or in part the agreement against the consumer;
( c) revise or alter the terms of the agreement; or
( d) order the repayment to the consumer of the whole or part of any sums paid.
(2) Where an agreement to which subsection (1) relates is a moneylending agreement the court may also order the F66 [ Bank ] to revoke, suspend or alter the moneylending licence of the holder concerned either immediately or as from such date as the court may decide.
Annotations:
Amendments:
F66
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 15, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 20(1).
Making demands and threats in relation to unenforceable agreements.
49.— (1) A person shall not make a demand for payment or assert a present or prospective right to payment in respect of an agreement which is unenforceable under this Act.
(2) A person shall not, with a view to obtaining payment in respect of an agreement which is unenforceable under this Act—
( a) threaten to bring any legal proceedings,
( b) place or cause to be placed the name of any person on a list of defaulters or debtors or threaten to do so, or
( c) invoke or cause to be invoked any other collection procedure or threaten to do so.
(3) In any proceedings for an offence under this section, it shall be a defence for the person to show that he had reasonable cause to believe that there was a right to payment.
Cooling-off period.
50.— (1) Subject to subsections (2) and (4), a consumer may withdraw from an agreement within 10 days of receiving it or a copy thereof (“the cooling-off period”) by giving written notice to this effect to the creditor or the owner, as the case may be.
(2) A consumer may forego his right to a cooling-off period in any credit agreement by signing a statement to this effect separately from any other term of the agreement.
(3) A statement by which a consumer forgoes the right to a cooling-off period shall carry in a prominent position:
“WARNING
THIS WAIVER MEANS YOU ARE GIVING UP YOUR RIGHT TO A 10 DAY PERIOD TO RECONSIDER YOUR COMMITMENT TO THE AGREEMENT.”.
(4) This section does not apply to a housing loan or credit availed of by means of a credit card or an overdraft facility offered by a credit institution.
PART V
Matters Arising on Termination of Agreements or on Default
Annotations:
Modifications (not altering text):
C15
Application of Part restricted (11.06.2010) by European Communities (Consumer Credit Agreements) Regulations 2010 (S.I. No. 281 of 2010), reg. 4(2), (4), in effect as per reg. 2, as substituted (20.12.2012) by European Union (Consumer Credit Agreements) (Amendment) Regulations 2012 (S.I. No. 579 of 2012), reg. 2(c).
Relationship of Parts 2 to 7 of these Regulations with Consumer Credit Act 1995
4. …
[(2) Subject to paragraph (4), parts III (other than sections 30(1) and (4)), IV (other than sections 42, 46, 47 and 48) and V of the Act of 1995 do not apply in relation to a credit agreement to which Parts 2 to 7 apply. ]
…
[(4) Paragraph (2) does not affect the operation of any provision of Part III, IV or V of the Act of 1995 in relation to a contract of guarantee that relates to a credit agreement. ]
(5) Nothing in this Regulation affects the operation of any provision of the Act of 1995 in relation to advertising, or a credit agreement, to which Parts 2 to 7 of these Regulations do not apply.
…
Application of Part V .
51.— This Part shall apply to any agreement other than a housing loan.
F67 [
Consumer entitled to discharge agreement early.
52. — (1) A consumer is entitled to discharge the consumer ’ s obligations under an agreement at any time before the time fixed by the agreement for its termination.
(2) The consumer shall exercise the entitlement by giving notice of termination in writing to the creditor or the owner (as the case requires) of the consumer’s intention to determine the agreement.
(3) Where the consumer exercises the entitlement, the creditor or owner shall allow a reduction in the total cost of credit under the agreement.
(4) Except where subsection (6) applies, the reduction is to be calculated in accordance with a method or formula approved for that purpose by the Bank.
(5) The Bank may approve different methods or formulas for the purpose of subsection (4) .
(6) The Minister for Finance may, after consulting the Bank, make a regulation prescribing a method or formula for calculating the reduction in the total cost of credit under agreements generally or any class of agreement.
(7) A method or formula prescribed by a regulation made under subsection (6) replaces a method or formula approved under subsection (4) to the extent that the regulation purports to supersede the method or formula so approved. ]
Annotations:
Amendments:
F67
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 16, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 24.
F68 [
Reduction where amount owed becomes payable before time fixed by agreement
53. — (1) A consumer is entitled to a reduction in the total cost of credit under an agreement if for any reason —
( a ) the amount owed by the consumer becomes payable before the time fixed by the agreement, or
( b ) any money becomes payable by the consumer before the time so fixed.
(2) Except where subsection (3) applies, the reduction is to be calculated in accordance with a method or formula approved for that purpose by the Bank.
(3) The Minister for Finance may, after consultation with the Bank, make a regulation prescribing a method or formula for calculating the reduction in the total cost of credit under agreements generally or any class of agreement.
(4) A method or formula prescribed by a regulation made under subsection (3) replaces a method or formula approved under subsection (2) to the extent that the regulation purports to supersede the method or formula so approved. ]
Annotations:
Amendments:
F68
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 17, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 24.
Limitation on right of enforcement.
54.— (1) A creditor or an owner shall not enforce a provision of an agreement by—
( a) demanding early payment of any sum,
( b) recovering possession of any goods (save where the goods are in imminent danger of being damaged or stolen), or
( c) treating any right conferred on the consumer by the agreement as determined, restricted or deferred,
unless he has served on the consumer, at least 10 days before he proposes to take any action, a notice which shall specify the following:
(i) details of the agreement sufficient to identify it;
(ii) the name and address of the creditor or owner, as the case may be;
(iii) the name and address of the consumer;
(iv) the term of the agreement to be enforced; and
(v) a statement of the action he intends to take to enforce the term of the agreement, the manner and circumstances in which he intends to take such action and the date on or after which he intends to take such action.
(2) A creditor or an owner shall not, by reason of any breach by a consumer of an agreement—
( a) determine the agreement,
( b) demand early payment of any sum,
( c) recover possession of the goods,
( d) treat any right conferred on the consumer by the agreement as determined, restricted or deferred, or
( e) enforce any security,
unless he has served on the consumer, not less than 10 days before he proposes to take any action, a notice which shall specify the following:
(i) details of the agreement sufficient to identify it;
(ii) the name and address of the creditor or owner, as the case may be;
(iii) the name and address of the consumer;
(iv) the nature of the alleged breach;
(v) either—
(I) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken, which date shall be not less than 21 days after the date of service of the notice, or
(II) if the breach is not capable of remedy, the sum, if any, required to be paid as compensation for the breach and the date before which it is to be paid, which date shall be not less than 21 days after the date of service of the notice; and
(vi) information about the consequences of failure to comply with the notice.
(3) If the consumer takes the action specified under subparagraphs (v) (I) or (v) (II) of subsection (2), before the date specified for that purpose in the notice, the breach shall be treated as not having occurred, in any records maintained for information on the consumer’s credit record.
(4) Notwithstanding this section, a creditor or an owner may apply to a court of competent jurisdiction in any particular case to have the provisions of this section dispensed with where the court is satisfied that it would be just and equitable to do so.
Unjustified enrichment.
55.— Where a creditor or an owner is compensated or recovers possession of goods in any action by virtue of this Act the court shall ensure that the compensation or repossession does not entail any unjustified enrichment of the creditor or the owner, as the case may be.
PART VIII
Provisions Relating to Moneylending
F73 [ Application and interpretation of Part VIII.
92. — (1) This Part applies to and in respect of moneylending agreements and to all transactions (whatever their form) that substantially involve moneylending.
(2) In this Part —
‘ authorised person ’ means the Bank, a person authorised by the Bank for the purposes of this section, F74 [ … ] an officer of the Bank or a member of the Garda S í och á na;
‘ certified ’ means certified by an authorised person. ]
Annotations:
Amendments:
F73
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 20, S.I. No. 160 of 2003.
F74
Deleted (1.10.2010) by Central Bank Reform Act 2010 (23/2010), s. 15(4) and sch. 2 pt. 4 item 4, S.I. No. 469 of 2010.
Moneylender’s licence.
93.— F75 [ (1) The Bank may grant to an applicant a moneylender ’ s licence authorising the applicant to engage in the business of money-lending in a specified district court district on such terms and conditions as it thinks fit, but only after considering all objections made in respect of the application under subsection (2) . ]
(2) A person who intends to apply F76 [ … ] for a moneylender’s licence shall before making such application cause to be published, in any national or local newspaper published in the State and circulating in the district court district that the applicant intends to engage or engages in the business of moneylending, notice of his intention.
F75 [ (3) An application for a moneylender ’ s licence must —
( a ) be in writing and in such form as the Bank may determine, and
( b ) be accompanied by the fee (if any) prescribed under section 33K of the Central Bank Act 1942 , for the purposes of this section.
(4) The fee referred to in subsection (3)(b) may be fixed by reference to a district court district and lower fees may be fixed for additional district court districts.
(5) The application must contain the following information:
( a ) the true name and the business name (if any) of the applicant;
( b ) the name under which the applicant intends to engage in or engages in the business of moneylending;
( c ) the address of any premises at which the applicant is carrying on or proposes to carry on the business of moneylending;
( d ) an itemised statement of the proposed total cost of credit;
( e ) details of collection and all other charges not included in the cost of credit;
( f ) details of the applicant’s terms and conditions for providing credit;
( g ) the name of every district court district in which the applicant carries on or proposes to carry on the business of moneylending;
( h ) a copy of any advertisement placed by the applicant as required under subsection (2) ;
( i ) such other information as the Bank may reasonably require. ]
(6) A person shall not wilfully give any information which is false or misleading in respect of an application for a moneylender’s licence.
(7) A moneylender’s licence shall be valid for the period of 12 months commencing on the date specified therein and shall expire at the end of that period.
(8) A moneylender’s licence shall state—
( a) the true name and business name (if any) of the holder,
( b) the name under which the holder is authorised by the licence to engage in the business of moneylending,
( c) the address of the business premises of the holder, and
( d) the district court district or districts in which the holder is authorised to engage in the business of moneylending in respect of which the licence is granted,
( e) an itemised statement of the APR to be charged in relation to moneylending agreements by the holder,
( f) details of collection and other charges not included therein,
( g) statement of the licence holder’s terms and conditions, and
( h) any restrictions to the licence.
(9) The holder of a moneylender’s licence shall only engage in the business of moneylending in the name specified in the holder’s licence.
(10) F75 [ The Bank may refuse to grant a moneylender’s licence on one or more of the following grounds ]:
( a) the applicant or any business with which he was connected was, during the previous 5 years, convicted of an offence for contravening section 98 ,
( b) the Circuit Court has, during the previous 2 years, decided pursuant to section 47 in relation to an agreement between the applicant and a consumer that the total cost of credit was excessive,
( c) the applicant is the holder of—
(i) a bookmaker’s licence issued under the Betting Act, 1931,
(ii) a licence for the sale of intoxicating liquor granted under the Licensing Acts, 1833 to 1994,
(iii) a gaming licence issued under the Gaming and Lotteries Act, 1956, or
(iv) a pawnbroker’s licence granted under the Pawnbrokers Act, 1964, as amended by this Act,
F77 [ ( d ) the applicant has failed to provide satisfactory evidence that a current tax clearance certificate in relation to the licence has been issued in accordance with the provisions of F78 [ section 1094 of the Taxes Consolidation Act, 1997 ] , ]
( e) the applicant or any person responsible or proposed to be responsible for the management of his business in relation to moneylending is by order of a court disqualified from holding a licence,
( f) the applicant is not or is no longer, in the opinion of the F75 [ Bank ], a fit and proper person to carry on the business of moneylending,
( g) in the F75 [ Bank ]’s opinion, the cost of credit to be charged is excessive or any of the terms or conditions attaching thereto are unfair, or
( h) in the case of an application for a second or subsequent moneylender’s licence, the applicant did not engage in the business of moneylending according to the terms or conditions of the previous licence.
F79 [ (10A) ( a ) Where in relation to a moneylender ’ s licence —
(i) an application in accordance with F78 [ section 1094 of the Taxes Consolidation Act, 1997 ] , for a tax clearance certificate has been made —
(I) not less than four months prior to the commencement date of such licence, and
(II) a tax clearance certificate has not yet been issued or refused,
or
(ii) a tax clearance certificate has been refused and an appeal against such refusal has been made and accepted in accordance with subsection (6) of the said F78 [ section 1094 ] ,
and in either case, the licence could, but for the provisions relating to a tax clearance certificate, have been issued, then —
(I) in a case where a licence has been granted in respect of the previous licensing period, such licence may continue in force beyond its latest expiry date pending —
(A) the issue or refusal of a tax clearance certificate, or
(B) in the case of an appeal, the final determination of that appeal,
and
(II) in a case where a licence has not been granted in respect of the previous licensing period, a licence may be issued temporarily and remain in force pending —
(A) the issue or refusal of a tax clearance certificate, or
(B) in the case of an appeal, the final determination of that appeal:
Provided that the amount of the fee that would be payable on the application for the licence is duly deposited with the Director.
( b ) Every licence issued temporarily or continued in force in accordance with paragraph (a) shall, while it remains in force, be deemed to be a licence within the meaning of this section.
( c ) Where —
(i) a determination is made to issue a tax clearance certificate, in respect of an application referred to in subparagraph (i) of paragraph (a) , or
(ii) the final determination of an appeal referred to in subparagraph (ii) of paragraph (a) is to the effect that the application for a tax clearance certificate in relation to a licence is an acceptable application,
and where the tax clearance certificate has been issued; the licence continued in force or issued temporarily under this subsection shall expire upon the grant of a licence under this section and the duty deposited shall be set against the appropriate duty payable on the grant of the licence.
( d ) Where —
(i) a determination is made to refuse a tax clearance certificate, in respect of an application referred to in subparagraph (i) of paragraph (a) , or
(ii) the final determination of an appeal under subparagraph (ii) of paragraph (a) is to the effect that the refusal of an application for a tax clearance certificate in relation to a licence is a valid refusal,
the licence continued in force or issued temporarily under this subsection shall expire not later than seven days after such refusal or after the determination of such appeal, and the amount of any duty deposited in excess of the proportion of that duty attributable to the period when the licence was temporarily in force shall be repaid, ]
(11) The F75 [ Bank ] may—
( a) suspend or revoke a moneylender’s licence, or
( b) vary the terms or conditions of a moneylender’s licence,
if F76 [ … ] satisfied that, since becoming the holder of a moneylender’s licence, a moneylender or any business with which he is connected has been convicted of an offence for contravening section 98 or a moneylender has become the holder of a licence referred to in subsection (10) (c) or has failed to comply with any of the terms or conditions of the licence.
(12) Whenever the F75 [ Bank ] proposes to refuse to grant, suspend, revoke or vary the terms or conditions of a moneylender’s licence F75 [ it ] shall notify the applicant or the holder of the licence, as the case may be, of F75 [ its ] proposal and shall, if any representations are made to him in writing by such applicant or holder within 14 days of the notification, consider the representations.
F80 [ (13) If, having considered any representations that may have been made under subsection (12) , the Bank decides to refuse to grant a licence, it shall, by notice in writing, inform the applicant of the decision. The notice must specify the grounds for the decision.
(14) If, having considered any representations that may have been made under subsection (12) , the Bank decides to suspend or revoke a moneylender ’ s licence, or to vary any term or condition of such a licence, it shall notify the decision to the holder of the licence, together with the grounds for the decision.
(15) The Bank shall deliver a notice referred to in subsection (13) or (14) personally or send it by prepaid registered post to the business address of the applicant for an authorisation or the holder of the authorisation concerned, as the case requires.
(16) The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942 :
( a ) a decision to refuse to grant a moneylender ’ s licence;
( b ) a decision suspending or revoking such a licence;
( c ) a decision varying any term or condition of such a licence.
(17) If a notice under this section relates to a decision of the Bank —
( a ) suspending or revoking a moneylender ’ s licence, or
( b ) varying the terms or conditions of such a licence,
the decision takes effect at the end of the period allowed for appealing against the decision under Part VIIA of the Central Bank Act 1942 unless an appeal against the decision is lodged under that Part within that period. ]
(18) A decision of the Circuit Court on an appeal under subsection (13) shall be final save that, by leave of the Court, an appeal from the decision shall lie to the High Court on a specified question of law.
(19) F81 [ … ]
Annotations:
Amendments:
F75
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 21(a), (c), (d)-(f), (h), (i), S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 20(1).
F76
Deleted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 21(b), (g), S.I. No. 160 of 2003.
F77
Substituted (1.01.1998) by Finance Act 1997 (22/1997), s. 160(2)(a)(i), commenced as per subs. (3)(a).
F78
Substituted (6.04.1997) by Taxes Consolidation Act 1997 (39/1997), s. 1100 and sch. 31, commenced as per s. 1097.
F79
Inserted (1.01.1998) by Finance Act 1997 (22/1997), s. 160(2)(a)(ii), commenced as per subs. (3)(a).
F80
Substituted (1.08.2004) by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 10(2) and sch. 1 pt. 6 item 1, S.I. No. 455 of 2004.
F81
Deleted (1.08.2004) by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 10(2) and sch. 1 pt. 6 item 1, S.I. No. 455 of 2004.
F82
Substituted by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 10(2) and sch. 1 pt. 6 item 1; not commenced as of date of revision.
Modifications (not altering text):
C16
Prospective affecting provision: subs. (18) substituted by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 10(2) and sch. 1 pt. 6 item 1; not commenced as of date of revision.
F82 [ (18) If an appeal is lodged under Part VIIA of the Central Bank Act 1942 by a holder of a moneylender’s licence against a decision of the Bank —
( a ) suspending or revoking such a licence, or
( b ) varying the terms or conditions of such a licence,
the decision does not take effect unless it is confirmed by the Irish Financial Services Appeals Tribunal or the appeal is withdrawn. ]
Editorial Notes:
E44
Previous affecting provision: applications for licence under subs. (3) exempted from fee (16.07.2004) by Central Bank Act 1942 (Sections 33J and 33K) Regulations 2004 (S.I. No. 447 of 2004), reg. 4(a)(ii); revoked (16.09.2011) by Central Bank Act 1942 (Section 32D) Regulations 2011 (S.I. No. 478 of 2011), reg. 11.
E45
Previous affecting provision: subss. (13), (17) and (19) amended (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 21(f), S.I. No. 160 of 2003; subsections substituted and deleted as per F-note above.
Obligation on moneylender to display licence.
94.— The holder of a moneylender’s licence shall display in a prominent position F83 [ a certified copy ] of the licence and any terms or conditions attached thereto in any premises where the holder engages in the business of moneylending.
Annotations:
Amendments:
F83
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 22, S.I. No. 160 of 2003.
“Moneylending agreement” to be stated in agreement.
95.— A moneylender shall ensure that any moneylending agreement to which he is a party shall contain in a prominent position the words “ Moneylending agreement ”.
F84 [ Money- lender ’ s licence not to be altered or falsified.
96. — (1) A person, other than an authorised person, shall not alter or attempt to alter a moneylender ’ s licence or an authorised copy of such a licence.
(2) A person shall not falsify or attempt to falsify a moneylender ’ s licence or a certified copy of such a licence. ]
Annotations:
Amendments:
F84
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 23, S.I. No. 160 of 2003.
Moneylender to issue authorisation to persons engaging in moneylending on his behalf off business premises.
97.— (1) A holder of a moneylender’s licence shall issue, in writing and in such form as may be specified by the F85 [ Bank ], to any person engaging in the business of moneylending on his behalf, at a place other than a business premises of the holder used for moneylending, authorisation to so engage, signed by or on behalf of the licence holder.
(2) An authorisation issued under subsection (1) shall cease to have effect should the moneylender who issued it cease to be the holder of a moneylender’s licence.
(3) A person shall not engage in the business of moneylending on behalf of the holder of a moneylender’s licence at a place other than the business premises of the holder unless he holds an authorisation issued under subsection (1).
(4) A person shall not alter, deface or falsify or attempt to alter, deface or falsify an authorisation issued under subsection (1).
(5) In any proceedings for an offence for contravening subsection (3) it shall be a defence for the accused to show that he had reasonable grounds to believe that any authorisation issued to him to engage in moneylending on behalf of a moneylender was bona fide issued under this section and in force.
Annotations:
Amendments:
F85
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 24, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 20(1).
Prohibition on engaging in business of moneylending without licence.
98.— (1) A person shall not engage in the business of moneylending on his own behalf unless—
( a) he is the holder of a moneylender’s licence, and
( b) he maintains a business premises for that purpose which is not used as a residence by any person.
(2) A person shall not engage in the business of moneylending on behalf of a moneylender who is not the holder of a moneylender’s licence.
(3) Where a member of the Garda Síochána has reasonable cause to suspect that a person in a public place is engaging in the business of moneylending in contravention of this section, the member may, without warrant, stop, question, search (if need be by force) and remove from that person any documents or money which the member reasonably believes may be in that person’s possession for the purpose of moneylending.
(4) A person shall not obstruct or interfere with a member of the Garda Síochána acting under subsection (3) or give to a member information which is false or misleading.
(5) A person shall comply with any request made of him by a member of the Garda Síochána under subsection (3).
(6) In this section “ public place” means any place to which the public have access whether as of right or by permission and whether subject to or free of charge; and the doorways, entrances and gardens abutting onto a public place and any ground or car-park adjoining and open to a public place shall be treated as forming part of a public place.
Loan or other credit to be advanced in full.
99.— Where credit is made available to a borrower by means of a moneylending agreement that credit shall not be reduced by the moneylender or a person acting on his behalf by any amount in respect of:
( a) repayment of the credit or any charges related thereto, or
( b) repayment of a previous credit or any charge related thereto,
and no payment in respect of the credit shall be required of the borrower by the moneylender or a person acting on his behalf before the due date of the first repayment instalment.
Repayment book.
100.— (1) A moneylender shall, in respect of every moneylending agreement, supply to the borrower a book or document (“ repayment book”) in which to record repayments made under the agreement which shall be completed and maintained by the moneylender in accordance with this section and shall be separate from the agreement.
(2) ( a) A moneylender shall, in respect of a moneylending agreement, enter in a repayment book before supplying it to a borrower the following information:
(i) an agreement number or other reference to enable the agreement to be identified,
(ii) the name and address of the moneylender (as specified on his moneylender’s licence),
(iii) the name and address of the borrower,
(iv) the amount of the credit being advanced,
(v) the date the credit is advanced,
(vi) the amount of each repayment instalment,
(vii) the rate of interest to be charged (including the APR expressed as £ per £100 borrowed) on foot of the credit advanced,
(viii) the amount of each collection charge (if any),
(ix) the number of repayment instalments,
(x) the date, or the mode of determining the date, upon which each repayment instalment is payable,
(xi) the total amount payable in respect of the loan, and
(xii) the date of expiry of the loan.
( b) A repayment book shall also include a record of repayments in the form set out in the Sixth Schedule and in which, on the occasion of each repayment, the person to whom the repayment is made shall enter the following:
(i) the date the repayment is made,
(ii) the amount of the repayment,
(iii) the amount still outstanding after deduction of the repayment, and
(iv) the signature of the person to whom the repayment is made.
Records to be maintained by moneylender.
101.— (1) A moneylender shall, in respect of every moneylending agreement, made after the commencement of this section, to which the moneylender is a party, keep a record of the agreement which shall include the following information:
( a) the agreement number or other reference to identify the agreement,
( b) the name and address of the borrower,
( c) the amount of the credit advanced under the agreement,
( d) the date the credit is advanced,
( e) the amount of each repayment instalment,
( f) the rate of interest charged including the APR,
( g) the amount of each collection charge (if any),
( h) the number of instalments,
( i) the total amount payable in respect of the loan, and
( j) a Schedule showing, in respect of each repayment—
(i) the date the repayment is made,
(ii) the amount of the repayment,
(iii) the amount still outstanding after deduction of the repayment, and
(iv) the name of the person to whom the repayment is made.
(2) A moneylender shall retain a record kept under subsection (1) for a period of not less than 5 years after the final repayment instalment under the agreement.
F86 [ (3) Neither a moneylender nor a person acting on the moneylender’s behalf may divulge to a person other than an authorised person any of the contents of records kept by the moneylender under this section.
(3A) The following persons are authorised for the purposes of subsection (3):
( a ) the borrower or an agent of the borrower;
( b ) the Bank, a Director of the Bank, an employee of the Bank, a delegate of the Bank or a member, officer or employee of such a delegate;
( c ) a court or an officer of a court. ]
Annotations:
Amendments:
F86
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 25, S.I. No. 160 of 2003.
Prohibition on charges for expenses on loans by moneylenders.
102.— (1) A moneylender shall not make or attempt to make an agreement with a borrower who has borrowed or intends to borrow credit from that moneylender for any sum (other than a collection charge), account of costs, charges or expenses incidental to or relating to the negotiations for, or the granting of, the loan.
(2) If any sum is paid by a borrower who has borrowed or intends to borrow credit from a moneylender for or on account of such costs, charges or expenses that sum shall be recoverable as a debt due to the borrower, or in the event of the loan being completed, shall, if not so recovered, be set off against the amount actually lent and that amount shall be deemed to be reduced accordingly.
Moneylending agreements which include a collection charge.
103.— (1) Where the amount payable under a moneylending agreement includes a collection charge in respect of the payment of repayments at a location other than the business premises of the moneylender, the agreement shall include the following:
( a) a clear indication of the amount of that charge,
( b) a statement that the borrower shall have the option of making the repayment at the business premises of the moneylender,
( c) a statement that if the borrower exercises the option, the charge will not be payable, and
( d) a statement that the borrower may indicate his unwillingness to avail of the option by signing a statement to this effect which has been explained to the borrower in a manner specified by the F87 [ Bank ], this signature to be additional to the borrower’s signature in relation to any of the terms of the agreement.
(2) A moneylender shall ensure that any moneylending agreement entered into with him complies with this section.
Annotations:
Amendments:
F87
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 26, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 20(1).
Presumption.
104.— Where in a prosecution for a contravention of this Part it is shown to a court that the accused had in his possession or control any document or sum of money in circumstances which give rise to the reasonable inference that such documents or money were kept for the purpose of moneylending, it shall be presumed, unless the contrary is shown, that the accused, at the time of such possession or control, was engaged in the business of moneylending.
Powers of entry of Garda Síochána.
105.— (1) A member of the Garda Síochána may enter a premises (if need be by reasonable force) at which there are reasonable grounds to suspect that the premises or part of the premises (other than a dwelling) is being used for the purposes of moneylending contrary to this Part or that evidence of an offence for contravening this Part may be found in such premises, and may search and inspect the premises and search and question any person found thereon and may seize and retain any document, money or thing which the member has reason to believe may be evidence of the commission of an offence for contravening this Part.
(2) A member of the Garda Síochána who enters a premises under subsection (1) may exercise any of the powers conferred on an authorised officer under F88 [ section 8N ] .
(3) A person shall not obstruct or interfere with a member of the Garda Síochána acting under this section or give any information which is false or misleading.
(4) A person shall comply with any requirement made of him by a member of the Garda Síochána under this section.
Annotations:
Amendments:
F88
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 27, S.I. No. 160 of 2003.
Search warrants.
106.— (1) If a judge of the District Court is satisfied on the sworn information of a member of the Garda Síochána that there are reasonable grounds for suspecting that any premises or any part of any premises is being used for the purposes of moneylending contrary to the provisions of this Part or that evidence of an offence for contravening this Part may be found in such premises, the judge may issue a warrant authorising any member of the Garda Síochána, accompanied by other members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter, if need be by force, and search the premises and any person found therein and question any such person and seize and retain any document or thing which such member has reason to believe may be evidence of the commission of an offence for contravening this Part and arrest any such person who the member has reason to believe has contravened any provision of this Part.
(2) A person shall not obstruct or interfere with a member of the Garda Síochána acting under the authority of a warrant under subsection (1) or give to a member information which is false or misleading.
(3) A person shall comply with any request made of him by a member of the Garda Síochána acting under the authority of a warrant under subsection (1).
Prohibition on possession of documents belonging to another person for moneylending.
107.— (1) A person shall not have in his possession or control for the purposes of moneylending any document belonging to another person.
(2) Where a member of the Garda Síochána has reasonable cause to suspect that a person is in possession or control of a document in contravention of subsection (1), the member may without warrant, stop and search (if need be by force) the person and seize the document.
(3) A person shall not obstruct or interfere with a member of the Garda Síochána acting under subsection (2).
(4) In this section “ document” includes every book, card, order, voucher or other document issued to any person.
Obligation to produce to member of Garda Síochána moneylender’s licence or authorisation.
108.— (1) Where a member of the Garda Síochána has reasonable cause to suspect that a person is engaged in the business of money-lending he may require that person to produce his moneylender’s licence or authorisation issued under section 97 .
(2) A person shall not obstruct or interfere with a member of the Garda Síochána acting under subsection (1) and shall comply with any requirement made of him under that subsection.
Powers of arrest.
109.— (1) If a member of the Garda Síochána has reasonable cause to suspect that a person has contravened this section, section 98, section 107 or 108 , the member may—
( a) arrest that person without warrant, or
( b) require the person to give his name and address and, if the person fails or refuses to do so or gives a name or address that member reasonably suspects to be false or misleading, the member may arrest that person without warrant.
(2) A person shall not refuse to give his name or address when required under subsection (1), or give a name or address which is false or misleading.
Prohibition on collecting repayments at certain times.
110.— (1) A person shall not engage in the business of collecting repayments whether personally or by his employee or agent—
( a) subject to subsection (2), between the hours of 9 o’clock in the evening on any week day and 10 o’clock in the morning on the following day, or
( b) at any time on a Sunday or a public holiday (within the meaning of the Holidays (Employees) Act, 1973).
(2) Where the borrower has given his consent in writing, separate from any other document, in the form set out in the Seventh Schedule or such other form as may be prescribed, a moneylender may engage in the collection of repayments whether personally or by his employee or agent between the hours of 8 o’clock and 10 o’clock in the morning on any week day.
(3) A copy of a consent under subsection (2) shall be—
( a) handed personally to the borrower upon giving such consent, or
( b) sent to the borrower within 10 days of giving such consent, by the moneylender or his employee or agent.
(4) A borrower may withdraw any consent given by him under subsection (2) by notifying the moneylender, his employee or agent and, accordingly, any such consent shall be terminated upon receipt of such notification.
Prohibition on selling goods while collecting repayments.
111.— A person on the occasion that a cash advance is made to a borrower under a money lending agreement, shall not sell or offer for sale any goods to that borrower.
Prohibition on increased charges for credit on default.
112.— A moneylending agreement shall be unenforceable against the borrower if it provides that the rate of charge for the credit may be increased or that any additional charge, other than legal costs, may apply in the event of a default in the payments due under the agreement.
Continuity of licences granted under Moneylenders Act, 1933.
113.— Any moneylender’s licence granted by the Revenue Commissioners under section 5 of the Moneylenders Act, 1933 (repealed by section 19 ) that is in force immediately before the commencement of section 93 shall continue in force after such commencement for the remainder of the period that such licence was so granted as if it had been granted by the Director under section 93 and that section shall be construed accordingly.
F89 [
Certain persons not to be regarded as moneylenders.
114. — The Minister for Finance may, after consulting the Bank, make regulations declaring that specified persons, or members of a specified class of persons, are not to be regarded as engaging in the business of moneylending for the purpose of this Part. ]
Annotations:
Amendments:
F89
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 28, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 pt. 3 para. 23(2).
PART IX
Housing Loans made by Mortgage Lenders
Application of, definitions, Part IX .
115.— (1) This Part shall apply to a housing loan made by a mortgage lender.
(2) In this Part—
F90 [ ‘ authorised person ’ means the Bank, a person authorised by the Bank for the purposes of this section, a delegate of the Bank or a member, officer or employee of such a delegate;
‘ certified ’ means certified by an authorised person; ]
“ endowment loan” means a housing loan which is to be repaid out of the proceeds of an insurance policy on its maturity, other than a policy providing mortgage protection insurance only;
“ information document” means any document, leaflet, notice, circular, pamphlet, brochure, film, video or facsimile issued to the general public or to certain persons (whether solicited or not) for the purpose of giving information in relation to housing loans;
“ insurance commission” means a payment or other remuneration, reward or benefit in kind, paid or payable by or on behalf of the insurer to any person in connection with the insurance business of the insurer and includes the time allowed by the insurer to that person for the payment by that person to the insurer of premiums received by that person for the insurer for contracts of insurance entered into by the insurer;
“ insurance intermediary” means an insurance agent or insurance broker within the meaning of the Insurance Act, 1989;
“ insurer” has the meaning assigned to it by the Insurance Act, 1989;
“ mortgage agent” means any or all of the following:
( a) a mortgage lender,
( b) a mortgage intermediary,
( c) an insurer, or
( d) an insurance intermediary;
“ subsidiary” has the same meaning assigned to it by section 155 of the Companies Act, 1963.
Annotations:
Amendments:
F90
Inserted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 29, S.I. No. 160 of 2003.
Mortgage intermediaries.
116.— (1) F91 [ Subject to section 116A (inserted by the European Union (Consumer Mortgage Credit Agreements) Regulations 2016) a person shall not engage ] in the business of being a mortgage intermediary unless—
( a) he is the holder of an authorisation (“a mortgage intermediaries authorisation”) granted for that purpose by the F92 [ Bank ], and
( b) he holds an appointment in writing from each undertaking for which he is an intermediary.
(2) A holder of an authorisation shall only engage in the business of being a mortgage intermediary in the name specified in the holder’s authorisation.
(3) An application for an authorisation shall be in writing and in such form as the F92 [ Bank ] may determine and shall contain—
( a) the true name of the applicant,
( b) the name under which the applicant trades,
( c) the name of any undertaking for which the applicant acts or intends to act as a mortgage intermediary,
( d) the address of any business premises of the applicant to which the application relates, and
( e) such other information that the F92 [ Bank ] may require.
F92 [ (4) An application for an authorisation must be accompanied by the fee (if any) prescribed under section 33K of the Central Bank Act 1942 , for the purposes of this section. ]
(5) F93 [ … ]
(6) A person shall not wilfully give any information which is false or misleading in respect of an application for an authorisation.
F94 [ (7) Except as provided by subsection (7A) , an authorisation remains in force for 12 months from the date specified in the authorisation.
(7A) In the case of a particular applicant, or an applicant of a particular class designated by the Bank for the purposes of this subsection, the Bank may, if it so chooses, grant an authorisation for a period longer than 12 months, subject to such conditions or requirements as the Bank specifies. If the Bank grants an authorisation for a period longer than 12 months, the authorisation remains in force for that period from the date specified in the authorisation. ]
(8) An authorisation shall state—
( a) the true name of the holder,
( b) the name under which the holder is authorised to engage in the business of being a mortgage intermediary,
( c) the address of the business premises of the holder, and
( d) the name of any undertaking for which the holder acts as a mortgage intermediary.
F94 [ (9) The Bank may refuse to grant an authorisation on any of the following grounds:
( a ) the applicant does not satisfy the condition specified in subsection (1)(b) ;
( b ) the applicant, or any business with which the applicant is or has been associated, has, during the previous 5 years, been convicted of an offence that, if committed by a natural person, would be punishable by imprisonment;
( c ) the applicant is the holder of —
(i) a bookmaker ’ s licence issued under the Betting Act 1931 , or
(ii) a licence for the sale of intoxicating liquor granted under the Licensing Acts 1833 to 1994, or
(iii) a gaming licence issued under the Gaming and Lotteries Act 1956 , or
(iv) a pawnbroker ’ s licence granted under the Pawnbrokers Act 1964 , or
(v) a moneylender ’ s licence;
( d ) the applicant has failed to provide a current Revenue tax clearance certificate in respect of himself or his business;
( e ) the applicant is not, in the opinion of the Bank, a fit and proper person to carry on business as a mortgage intermediary. ]
F95 [ (9A) ( a ) Where in relation to an authorisation —
(i) an application in accordance with F96 [ section 1094 of the Taxes Consolidation Act, 1997 ] , for a tax clearance certificate has been made —
(I) not less than four months prior to the commencement date of such authorisation, and
(II) a tax clearance certificate has not yet been issued or refused,
or
(ii) a tax clearance certificate has been refused and an appeal against such refusal has been made and accepted in accordance with subsection (6) of the said F96 [ section 1094 ] ,
and in either case, the authorisation could, but for the provisions relating to a tax clearance certificate, have been issued, then —
(I) in a case where an authorisation has been granted in respect of the previous authorisation period, such authorisation may continue in force beyond its latest expiry date pending —
(A) the issue or refusal of a tax clearance certificate, or
(B) in the case of an appeal, the final determination of that appeal,
and
(II) in a case where an authorisation has not been granted in respect of the previous authorisation period, an authorisation may be issued temporarily and remain in force pending —
(A) the issue or refusal of a tax clearance certificate, or
(B) in the case of an appeal, the final determination of that appeal:
Provided that the amount of the fee that would be payable on the application for the authorisation is duly deposited with the F92 [ Bank ] .
( b ) Every authorisation issued temporarily or continued in force in accordance with paragraph (a) shall, while it remains in force, be deemed to be an authorisation within the meaning of this section.
( c ) Where —
(i) a determination is made to issue a tax clearance certificate, in respect of an application referred to in subparagraph (i) of paragraph (a) , or
(ii) the final determination of an appeal referred to in subparagraph (ii) of paragraph (a) is to the effect that the application for a tax clearance certificate in relation to an authorisation is an acceptable application,
and where the tax clearance certificate has been issued, the authorisation continued in force or issued temporarily under this subsection shall expire upon the grant of an authorisation under this section and the duty deposited shall be set against the appropriate duty payable on the grant of the authorisation.
( d ) Where —
(i) a determination is made to refuse a tax clearance certificate, in respect of an application referred to in subparagraph (i) of paragraph (a) , or
(ii) the final determination of an appeal under subparagraph (ii) of paragraph (a) is to the effect that the refusal of an application for a tax clearance certificate in relation to an authorisation is a valid refusal,
the authorisation continued in force or issued temporarily under this subsection shall expire not later than seven days after such refusal or after the determination of such appeal, and the amount of any duty deposited in excess of the proportion of that duty attributable to the period when the authorisation was temporarily in force shall be repaid. ]
F92 [ (10) The Minister for Finance may, after consulting the Bank, make regulations prohibiting the holder of an authorisation from acting as or claiming to be a mortgage intermediary, unless there is in force in respect of that holder a policy of professional indemnity insurance that complies with such requirements as are specified in those regulations. ]
F94 [ (11) The Bank may suspend or revoke an authorisation on any of the following grounds:
( a ) the holder no longer satisfies the condition specified in subsection (1)(b) ;
( b ) the holder, or any business entity with which the holder is associated, is convicted of an offence that, if committed by a natural person, would be punishable by imprisonment;
( c ) the holder has become the holder of —
(i) a bookmaker ’ s licence issued under the Betting Act 1931 , or
(ii) a licence for the sale of intoxicating liquor granted under the Licensing Acts 1833 to 1994, or
(iii) a gaming licence issued under the Gaming and Lotteries Act 1956 , or
(iv) a pawnbroker ’ s licence granted under the Pawnbrokers Act 1964 , or
(v) a moneylender ’ s licence;
( d ) the holder is failing, or has failed, to provide a current Revenue tax clearance certificate in respect of the holder or the holder’s business;
( e ) the holder is failing, or has failed to comply, with a condition or requirement imposed on the holder under subsection (7) ;
( f ) the applicant is contravening or has contravened a regulation in force under subsection (10);
( g ) the holder is no longer, in the opinion of the Bank, a fit and proper person to carry on the business of a mortgage intermediary;
( h ) the Bank would, if the holder were an applicant for an authorisation, be entitled to refuse to grant an authorisation to the applicant on a ground specified in subsection (9) . ]
(12) Whenever the F92 [ Bank ] proposes to refuse to grant, suspend or revoke an authorisation F92 [ it ] shall notify the applicant or the holder of the authorisation, as the case may be, of F92 [ its ] proposal and shall, if any representations are made to him in writing by such applicant or holder within 14 days of the notification, consider the representations.
F97 [ (13) If, having considered any representations that may have been made under subsection (12) , the Bank decides to refuse to grant a licence, it shall, by notice in writing, inform the applicant of the decision. The notice must specify the grounds for the decision.
(14) If, having considered any representations that may have been made under subsection (12) , the Bank decides to suspend or revoke an authorisation, or to vary any term or condition of an authorisation, it shall notify the decision to the holder of the authorisation, together with the grounds for the decision.
(15) The Bank shall deliver a notice referred to in subsection (13) or (14) personally or send it by prepaid registered post to the business address of the applicant for an authorisation or the holder of the authorisation concerned, as the case requires.
(16) The following decisions are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942 :
( a ) a decision to refuse to grant an authorisation;
( b ) a decision suspending or revoking an authorisation;
( c ) a decision varying any term or condition of an authorisation.
(17) If a notice under this section relates to a decision of the Bank —
( a ) suspending or revoking an authorisation, or
( b ) varying the terms or conditions of an authorisation,
the decision takes effect at the end of the period allowed for appealing against the decision under Part VIIA of the Central Bank Act 1942 unless an appeal against the decision is lodged under that Part within that period. ]
(18) A decision of the Circuit Court on an appeal under subsection (13) shall be final save that, by leave of that Court, an appeal from the decision shall lie to the High Court on a specified question of law.
F97 [ (19) In this section, ‘ authorisation ’ means a mortgage intermediaries authorisation. ]
(20) F98 [ … ]
Annotations:
Amendments:
F91
Substituted (21.03.2016) by European Union (Consumer Mortgage Credit Agreements) Regulations 2016 (S.I. No. 142 of 2016), in effect as per reg. 2.
F92
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 30(a), (b), (e), (f), (g), S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 paras. 20(1) and 23(2).
F93
Deleted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 30(c), S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 23(2).
F94
Substituted and inserted (1.08.2004) by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 33 and sch. 3 pt. 12 item 3, S.I. No. 455 of 2004, subject to transitional provision in s. 36 and sch. 3 para. 20(1).
F95
Inserted (1.01.1998) by Finance Act 1997 (22/1997), s. 160(2)(b)(ii), commenced as per subs. (3).
F96
Substituted (6.04.1997) by Taxes Consolidation Act 1997 (39/1997), s. 1100 and sch. 31, commenced as per s. 1097.
F97
Substituted (1.08.2004) by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 10(2) and sch. 1 pt. 6 item 2, S.I. No. 455 of 2004.
F98
Deleted (1.08.2004) by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 10(2) and sch. 1 pt. 6 item 2, S.I. No. 455 of 2004.
F99
Substituted by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 10(2) and sch. 1 pt. 6 item 2; not commenced as of date of revision.
Modifications (not altering text):
C17
Prospective affecting provision: subs. (18) substituted by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 10(2) and sch. 1 pt. 6 item 2; not commenced as of date of revision.
F99 [ (18) If an appeal is lodged under Part VIIA of the Central Bank Act 1942 by a holder of an authorisation against a decision of the Bank —
( a ) suspending or revoking an authorisation, or
( b ) varying the terms or conditions of an authorisation,
the decision does not take effect unless it is confirmed by the Irish Financial Services Appeals Tribunal or the appeal is withdrawn. ]
C18
Certain authorisations made subject to transitional provisions by European Union (Consumer Mortgage Credit Agreements) Regulations 2016 (S.I. No. 142 of 2016), reg. 42, in effect as per reg. 2.
Transitional provisions
42. (1) These Regulations shall not apply to a credit agreement that comes into effect before 21 March 2016.
(2) As respects—
(a) a mortgage intermediaries authorisation granted under section 116 of the Consumer Credit Act 1995 and in force immediately before 21 March 2016, and
(b) the holder of such an authorisation that is so in force,
the following apply—
(i) the authorisation shall, notwithstanding Regulation 30, continue in force for the reminder of the period for which, under that section 116, it is provided it shall be in force, but this is subject to paragraph (3);
(ii) the holder of the authorisation shall be deemed to be a holder of a mortgage credit intermediary’s authorisation and the provisions of these Regulations shall accordingly apply to the holder, but this is subject to paragraphs (3) to (6).
(3) The application of the provisions of these Regulations to a holder referred to in paragraph (2)(b) includes the application to the holder of the provisions of Regulation 34 but the grounds on which the powers under that Regulation may be exercised in relation to such a holder do not include a ground the invocation of which would be inconsistent with paragraph (4) or (6).
(4) Notwithstanding anything in paragraph (2), a holder referred to in paragraph (2)(b) is not required to comply with paragraphs (3) to (7) of Regulation 30 until 21 March 2017.
(5) Notwithstanding anything in paragraph (2), a holder referred to in paragraph (2)(b) shall not act as a mortgage credit intermediary outside the State at any time before 21 March 2017, unless the holder satisfies the necessary legal requirements of the host EEA Member State.
(6) Notwithstanding anything in Regulation 2 or paragraph (2), the requirement to have done all the necessary things so as to be in compliance with Regulation 10 shall not take effect, in the case of a creditor or mortgage credit intermediary who has been performing activities to which these Regulations relate before 20 March 2014, until 21 March 2017.
(7) As respects a tied mortgage branch agent within the meaning of the Consumer Credit Act 1995 (Section 120) Regulations 1996 (S.I. No. 247 of 1996) who is acting as such before 21 March 2016, the following apply—
(a) such a tied mortgage branch agent shall be deemed to be a holder of a mortgage credit intermediary’s authorisation, and
(b) the provisions of these Regulations shall accordingly apply to such an agent,
but, with any necessary modification of those paragraphs’ terms for the purpose of qualifying subparagraph (b) as next provided, subparagraph (b) of this paragraph is subject to paragraphs (3) to (6).
Editorial Notes:
E46
Previous affecting provision: applications for authorisation under subs. (4) exempted from fee (16.07.2004) by Central Bank Act 1942 (Sections 33J and 33K) Regulations 2004 (S.I. No. 447 of 2004), reg. 4(a)(iii); revoked (16.09.2011) by Central Bank Act 1942 (Section 32D) Regulations 2011 (S.I. No. 478 of 2011), reg. 11.
E47
Previous affecting provision: subss. (9), (11), (13), (17) and (19) amended (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 30(a), (d), (f), S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 23(2); substituted as per F-note above.
E48
Previous affecting provision: subs. (9)(d) substituted (1.01.1998) by Finance Act 1997 (22/1997), s. 160(2)(b)(i), commenced as per subs. (3); substituted as per F-note above.
E49
Previous affecting provision: subs. (9)(d) amended (6.04.1997) by Taxes Consolidation Act 1997 (39/1997), s. 1100 and sch. 31, commenced as per s. 1097; substituted as per F-note above.
F100 [ Non-application of section 116 and deemed application of certain provisions
116A. — (1) Section 116 shall not apply to a person required to hold a mortgage credit intermediary ’ s authorisation under Regulation 30 of the European Union (Consumer Mortgage Credit Agreements) Regulations 2016 (in subsection (2) referred to as a ‘ relevant authorisation ’ ).
(2) Notwithstanding subsection (1) , a person who is the holder for the time being of a relevant authorisation shall, for the purposes, and the purposes only, of sections 117 to 119 , be deemed to be the holder of a mortgage intermediaries authorisation. ]
Annotations:
Amendments:
F100
Inserted (21.03.2016) by European Union (Consumer Mortgage Credit Agreements) Regulations 2016 (S.I. No. 142 of 2016), reg. 44(1)(b), in effect as per reg. 2.
Obligation to display copy of mortgage intermediaries authorisation.
117.— The holder of a mortgage intermediaries authorisation shall display in a prominent position in any premises where the holder engages in the business of being a mortgage intermediary—
( a) F101 [ a certified copy ] of the authorisation, and
( b) a notice stating clearly the name of any undertaking for whom the holder acts as a mortgage intermediary.
Annotations:
Amendments:
F101
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2013) , s. 35(1) and sch. 1 pt. 21 item 31, S.I. No. 160 of 2003.
F102 [
Mortgage intermediaries authorisation not to be altered or falsified.
118. — (1) A person, other than an authorised person, shall not alter or attempt to alter a mortgage intermediaries authorisation or a certified copy of such an authorisation.
(2) A person shall not falsify or attempt to falsify a mortgage intermediaries authorisation or a certified copy of such an authorisation. ]
Annotations:
Amendments:
F102
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 32, S.I. No. 160 of 2003.
F103 [
Amendment of mortgage intermediaries authorisation.
119. — (1) Immediately after the holder of a mortgage intermediaries authorisation —
( a ) ceases to act on behalf of an undertaking specified in the authorisation, or
( b ) begins to act as a mortgage intermediary on behalf of an undertaking not specified in the authorisation,
that holder shall, in writing, notify the Bank of the event, and shall deliver the authorisation to the Bank.
(2) On receiving the notice and authorisation, the Bank shall (at its option) either amend the authorisation, or issue another authorisation, that reflects the event. ]
Annotations:
Amendments:
F103
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 33, S.I. No. 160 of 2003.
F104 [
Certain persons not to be regarded as mortgage intermediaries.
120. — The Minister for Finance may, after consulting the Bank, make a regulation declaring that specified persons, or members of a specified class of persons, are not to be regarded as mortgage intermediaries for the purpose of this Part. ]
Annotations:
Amendments:
F104
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 34, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 23(2).
Editorial Notes:
E50
Power pursuant to section exercised (8.08.1996) by Consumer Credit Act, 1995 (Section 120) Regulations 1996 (S.I. No. 247 of 1996).
Redemption of housing loans.
121.— (1) Subject to subsection (3), a borrower may, at any time before the time agreed, repay to the mortgage lender the whole or any part of a housing loan and shall not be liable to pay any redemption fee in relation to the loan or any part of the loan.
(2) The exemption from redemption fees in subsection (1) shall not apply to a housing loan in respect of which the mortgage or loan agreement provides that the rate of interest:
( a) may not be changed, or
( b) may not be changed over a period of at least one year, or
( c) may not, for a period of at least 5 years, exceed the rate applicable on the date of the making of the said agreement by more than 2 per cent.
(3) The exemption from redemption fees in subsection (1) shall apply at any time during the period of the loan at which the period referred to in paragraph (b) or (c) of subsection (2) have elapsed.
F105 [ (4) The Minister for Finance may, after consulting the Minister for the Environment and Local Government and the Bank, make a regulation varying —
( a ) the period referred to in subsection (2)(b) , or
( b ) the period or years or the rate of interest, referred to in subsection (2)(c) . ]
(5) A mortgage agent shall, where a redemption fee is payable on a housing loan by virtue of subsection (2), ensure that a statement to that effect, specifying how the amount of such fee is to be calculated, shall be included in or attached to:
( a) any information document which refers or relates to such a loan,
( b) any application form issued for the purpose of applying for such a loan or, where application for the loan is made otherwise than by way of an application form, such a statement shall be sent to the applicant within 10 days of the receipt of the application,
( c) any document sent to the applicant approving the loan, and
( d) any communication in relation to a variation of, or any offer to vary, the terms of the housing loan which would have the effect of making the loan liable to a redemption fee in accordance with subsection (2).
(6) In this section “ redemption fee” means, in relation to a housing loan, any sum in addition to principal and any interest due on such principal (without regard to the fact of the redemption of the loan) at the time of redemption of the whole or part of the loan.
Annotations:
Amendments:
F105
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 35, S.I. No. 160 of 2003.
Criteria for calculation of APR in relation to housing loans.
122.— (1) For the purpose of calculating the APR in relation to a housing loan the total cost of credit to the borrower shall be determined with the exception of the following charges—
( a) charges other than the purchase price which the consumer is obliged to pay whether the transaction is paid for in cash or by credit including Government duties or taxes on the purchase or acquisition of the property, and fees payable by the borrower to his own agent for the carrying out of legal and other procedures associated with the acquisition of the property,
( b) charges payable by the borrower for non-compliance with any of his commitments laid down in the credit agreement,
( c) charges for insurance on the life of the borrower or for insurance against property damage which are designed to ensure payment to the creditor of credit outstanding in the event of the death of the borrower, or insurable damage to the property the subject of the credit agreement, before termination of the agreement.
(2) In calculating the APR in relation to a housing loan, the following assumptions shall be made:
( a) the creditor and the prospective borrower fulfil their obligations under the terms of the contract,
( b) in the case of credit agreements providing for variations in the rate of interest or other charges which are unquantifiable at the time of calculation, the APR shall be calculated on the assumption that the future rates of interest or charges are the current variable rates which will remain fixed and will apply until the end of the credit agreement. In circumstances in which the initial or subsequent interest rate is fixed for a specific period or periods, the calculation shall assume that the fixed rate or rates shall apply only for the period or periods specified and that the rates applicable to other periods of the contract are the current variable rates which will remain fixed for those periods,
( c) that the borrower is not entitled to any income tax relief or any other benefit not granted by the creditor under, or relating to, the transaction,
( d) where charges are payable at an unspecified date after the agreement is signed it shall be assumed that they are payable at the beginning of the agreement,
( e) in the case of advertising, the calculation shall be based on a typical example.
(3) A mortgage lender shall comply with the requirements of this section in relation to the calculation of the APR in respect of a housing loan.
Valuation reports.
123.— (1) Where a mortgage lender—
( a) gives approval to the making of a housing loan; or
( b) refuses to make a housing loan,
the applicant for the loan shall, at the time he is notified of the approval of the loan or of the refusal to give such approval, be furnished by the mortgage lender with a copy of the report (“valuation report”) made to the mortgage lender on the value of the security.
(2) The mortgage lender shall attach to or include in every valuation report furnished to an applicant in accordance with subsection (1) a note stating clearly the nature and purpose of the report.
(3) There shall be no charge made to the applicant for a valuation report if the loan application is refused.
Insurance of mortgaged property.
124.— (1) Any insurance which a mortgage lender may require a borrower to effect and keep effected on property mortgaged to the lender may be effected by the borrower with any insurer and through any intermediary.
(2) When the mortgage lender requires a borrower to effect such insurance for the first time as respects a mortgaged property, he shall, at the same time, notify him in writing that the insurance may be so effected and of the nature and extent of the required insurance.
(3) A mortgage lender shall not impose a requirement in regard to the nature and extent of insurance on mortgaged property which differentiates as between insurance effected through the agency of the mortgage lender and insurance otherwise effected.
(4) A mortgage lender shall not impose a condition on a borrower in relation to insurance on mortgaged property which would require the borrower to pay a fee to the mortgage lender or to incur a cost which, in either case, would not be paid or incurred by a borrower effecting insurance through the agency of the mortgage lender.
Costs of legal investigation of title.
125.— Any costs incurred by a mortgage lender in respect of, arising from or in connection with, the legal investigation of title to any property offered as security by a borrower shall be paid by the mortgage lender and shall not be recoverable from the borrower either as a fee specifically stated to be in respect of such costs or as part of any fee or other charge in respect of the loan.
Mortgage protection insurance.
126.— (1) Subject to the provisions of this section, a mortgage lender shall arrange, through an insurer or an insurance intermediary, a life assurance policy providing, in the event of the death of a borrower before a housing loan made by the mortgage lender has been repaid, for payment of a sum equal to the amount of the principal estimated by the mortgage lender to be outstanding in the year in which the death occurs on the basis that payments have been made by the borrower in accordance with the mortgage, such sum to be employed in repayment of the principal.
(2) Subsection (1) shall apply as respects all housing loans except—
( a) where the house in respect of which the loan is made is, in the mortgage lender’s opinion, not intended for use as the principal residence of the borrower or of his dependants,
( b) loans to persons who belong to a class of persons which would not be acceptable to an insurer, or which would only be acceptable to an insurer at a premium significantly higher than that payable by borrowers generally,
( c) loans to persons who are over 50 years of age at the time the loan is approved,
( d) loans to persons who, at the time the loan is made, have otherwise arranged life assurance, providing for payment of a sum, in the event of death, of not less than the sum referred to in subsection (1).
(3) A person who does not belong to a class referred to in paragraph (b) of subsection (2) shall not be required by virtue of this section to undergo a medical examination as a condition of a policy but nothing in this section shall prevent a person belonging to such a class from being required to undergo a medical examination.
(4) A policy under this section may, in the case of a loan made jointly to two or more borrowers, apply to such of the borrowers as may be designated by the mortgage lender, due regard being had to the wishes of such borrowers.
(5) Where the proceeds of a policy under this section exceed the amount due to the mortgage lender on the loan, any such excess shall be payable to the surviving borrower or to the estate of the deceased borrower as the case may be.
Prohibition on linking of services.
127.— (1) A mortgage agent shall not make or offer to make to any person, or arrange or offer to arrange for any person, a housing loan which would be subject to a condition that any financial services, conveyancing services, auctioneering services or other services relating to land which that person may require, whether or not in connection with the loan, shall be provided by the agent or through a subsidiary or other associated body of such agent.
(2) Where, in connection with the making or arranging of a housing loan, more than one service is made available by a mortgage agent or one or more of his subsidiaries, the agent shall not, and shall ensure that each of his subsidiaries does not, make the services available on terms other than terms which distinguish the consideration payable for each service so made available; nor shall any of the subsidiaries make the services available on terms other than terms which make that distinction.
(3) Where a person is providing auctioneering services, or constructing houses for sale, and is also a mortgage intermediary, he, or a subsidiary or other associated body, shall not sell, offer to sell or arrange to sell a house which is to be purchased with the aid of a housing loan, on terms which differentiate as between a person who purchases the house with the aid of a housing loan arranged by or on behalf of such intermediary and a person who purchases the house with the aid of a housing loan otherwise arranged.
Warning on loss of home.
128.— (1) A mortgage agent shall ensure that—
( a) an information document,
( b) an application form for a housing loan, or
( c) any document approving a housing loan,
shall include the following notice:
“WARNING
YOUR HOME IS AT RISK IF YOU DO NOT KEEP UP PAYMENTS ON A MORTGAGE OR ANY OTHER LOAN SECURED ON IT.”.
(2) A mortgage agent shall ensure that, where the interest rate for a housing loan is variable—
( a) an information document,
( b) an application, or
( c) any document approving that loan,
shall, following the notice required under subsection (1), include the following:
“THE PAYMENT RATES ON THIS HOUSING LOAN MAY BE ADJUSTED BY THE LENDER FROM TIME TO TIME.”.
Notice of important information to be included in a housing loan agreement.
129.— (1) An agreement for a housing loan shall contain on the front page a notice in the form set out in Part II of the Third Schedule or such other form as may be prescribed.
(2) A mortgage lender who is a party to an agreement referred to in subsection (1) shall ensure that the agreement complies with that subsection.
F106 [ (3) This section shall not apply to a credit agreement to which the European Union (Consumer Mortgage Credit Agreements) Regulations 2016 apply. ]
Annotations:
Amendments:
F106
Inserted (21.03.2016) by European Union (Consumer Mortgage Credit Agreements) Regulations 2016 (S.I. No. 142 of 2016), reg. 142(2), in effect as per reg. 2.
Editorial Notes:
E51
Power pursuant to section exercised (13.05.1996) by Consumer Credit Act, 1995 (Section 129) Regulations 1996 (S.I. No. 132 of 1996).
Duties of mortgage lender to supply documents and information.
130.— A mortgage lender shall in respect of a housing loan, issue to the borrower:
( a) at the time the loan is made, or as soon as may be practicable thereafter a copy of the mortgage deed (including any contract relating thereto) which copy shall be additional to any copy of such mortgage deed issued to his legal representative, and
( b) a statement of the total amount outstanding on the loan on a specified date occurring not more than one year after the making of the loan and at intervals of not more than one year thereafter until the loan is fully repaid, such statement being issued as soon as practicable after the date specified.
Disclosure of charges, agency introduction fees, commissions and expenses.
131.— F107 [ (1) The Minister for Finance may, after consulting the Minister for the Environment and Local Government and the Bank, make a regulation requiring the disclosure to the borrower of specified information relating to any insurance commission, introduction fee or other inducement, charge or expense that may be payable to a person or retained by a person —
( a ) because the borrower has taken out an insurance policy in connection with the making of a housing loan, or
( b ) because of the making of such a loan. ]
(2) Regulations under this section may in particular specify:
( a) the nature of the information to be disclosed, including information on the manner in which any commission, fee, or other inducement, charge or expense is to be determined, the amount or value of same and the arrangements for the payment or provision of same,
( b) the circumstances in which and the time at which the information is to be disclosed,
( c) the manner of disclosure of the information.
(3) ( a) Subsection (2) is without prejudice to the generality of subsection (1) and accordingly regulations under this section may make provision for matters other than those mentioned in subsection (2) or further provision as to any of the matters there mentioned.
( b) Regulations made under this section may:
(i) include such consequential, incidental, transitional or supplementary provisions as may be considered appropriate by the F107 [ Minister for Finance ] to be necessary or proper for the purposes of this section;
(ii) apply either generally or by reference to a specified class or classes of loans, insurance, mortgage agents, or persons or by reference to any other matter that is considered appropriate by F107 [ that Minister ].
(4) Where, in connection with the making of a housing loan, a mortgage lender or mortgage intermediary acts exclusively for a particular insurer, he shall at the first reasonable opportunity and in any event before any commitment is made by the borrower, disclose this fact to the borrower.
(5) Where, in connection with the making of a housing loan, a mortgage intermediary acts exclusively for a particular mortgage lender, he shall at the first reasonable opportunity and in any event before any commitment is made by the borrower, disclose this fact to the borrower.
Annotations:
Amendments:
F107
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 36, S.I. No. 160 of 2003, subject to transititional provision in s. 36 and sch. 3 para. 23(2).
Disclosure of other fees.
132.— Where a fee is payable by an applicant for a housing loan in respect of any of the following matters—
( a) the making, accepting or administering of an application for a loan,
( b) the valuation of the security for the loan,
( c) legal services in connection with the loan,
( d) services provided by a mortgage agent in relation to the loan, or
( e) non-acceptance of an offer or approval of a loan,
the mortgage agent shall ensure that a statement of reasonable prominence that such a fee is payable and specifying the amount of the fee or how such amount is determined and the circumstances in which it may be refunded, if such is the case shall be included in or attached to:
(i) any information document issued by or on behalf of the mortgage agent which refers or relates to such a loan,
(ii) any application form issued for the purposes of applying for such a loan or, where application for the loan is made otherwise than by way of an application form, issued to the applicant within 10 days of the receipt of the application, and
(iii) any document sent to the applicant approving the loan, in relation to the matters specified in paragraphs (b), (c), (d) and (e).
Endowment loans.
133.— (1) A mortgage agent shall ensure that an information document which refers or relates to an endowment loan, an application form issued to a person for the purpose of applying for such a loan, and any document approving such a loan shall contain in a prominent position the following notice:
“WARNING
THERE IS NO GUARANTEE THAT THE PROCEEDS OF THE INSURANCE POLICY WILL BE SUFFICIENT TO REPAY THE LOAN IN FULL WHEN IT BECOMES DUE FOR REPAYMENT.”.
(2) Where an application for an endowment loan is made, otherwise than by way of an application form, the applicant shall be supplied by the mortgage agent with a notice in accordance with subsection (1) within 10 days of the receipt of the application.
(3) Subsections (1) and (2) shall not apply where the insurer underwriting the insurance policy in respect of an endowment loan guarantees that the proceeds of the policy at the initial premium will be sufficient to repay the loan in full when it becomes due for repayment or where the mortgage lender undertakes to accept the proceeds in full and final settlement of the loan debt.
(4) Where there is a possibility that, during the lifetime of an endowment loan, the borrower may be required or advised by the insurer or mortgage lender to increase the amount of the premium payments on the insurance policy relating to the loan, in order to secure an increase in the proceeds of the policy on maturity, then the document sent to the applicant approving the loan shall contain a statement of this possibility in a prominent position.
(5) Where the possibility exists that early surrender of the insurance policy in respect of an endowment loan may result in a return to the consumer which would be less than he has paid in premia and other charges, any document refered to in subsection (1) shall contain a statement of this possibility.
(6) An insurer underwriting an insurance policy in respect of an endowment loan shall within 5 years of the policy being issued and every 5 years thereafter, until such time as the endowment loan is repaid, issue or cause to be issued to the borrower, a statement setting out the value of the policy as estimated by the insurer, at such date together with a comparison of this valuation to the valuation at such date projected at the time the policy was first written, and a revised estimate of its valuation at maturity.
Disclosure of interest rate and penalties to be applied to arrears on housing loans.
134.— (1) Where it is the policy of a mortgage lender to charge interest in respect of arrears on housing loans or on housing loans of a particular type the mortgage lender shall ensure that, any information document relating to, application form for, or document approving, such a loan and any communication in relation to arrears of payments due on such a loan shall state the amount of the increase in interest and other charges which a borrower may become liable to pay in respect of such arrears.
(2) Any communication issued by or on behalf of a mortgage lender to a borrower which refers to the possibility of possession proceedings being taken under the mortgage, shall contain an estimate of the cost to the borrower of such proceedings.
Advertising of housing loans.
135.— (1) F108 [ The Bank may, if it ] considers it expedient to do so give a direction to a mortgage agent in relation to the matter and form of any advertisement or information document displayed or published by or on behalf of such agent in relation to a housing loan and may direct that such advertisement or information document be withdrawn.
(2) Without prejudice to the generality of subsection (1), a direction under this section may do all or any one or more of the following—
( a) prohibit the issue by a mortgage agent of advertisements or information documents of any specified description,
( b) require a mortgage agent to modify advertisements or information documents of a specified description in a specified manner,
( c) prohibit the issue by a mortgage agent of any advertisements or information documents which are, or are substantially, repetitions of a specified advertisement or information document,
( d) require a mortgage agent to withdraw any specified advertisement or information document or any advertisement or information document of a specified description, or
( e) require a mortgage agent to include specified information in any advertisement or information document to be published by it or on its behalf or in any statement to the public made by it or on its behalf.
(3) Any mortgage agent so directed under subsection (1) shall comply with the direction.
(4) F109 [ … ]
Annotations:
Amendments:
F108
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 37(a), S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 20(1).
F109
Deleted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 37(b), S.I. No. 160 of 2003.
Protection of borrower on a winding-up.
136.— (1) Where a mortgage lender (being a corporate entity) is being wound-up, a borrower shall not be liable to pay the amount payable in respect of a housing loan except at the time or times, and subject (as may be appropriate) to the conditions, set out in the mortgage or other security.
(2) A liquidator in the exercise of his powers under section 231 (2) ( a) of the Companies Act, 1963, shall not dispose of any of the mortgage lender’s assets constituting housing loans on terms as respects the loans other than terms which the High Court is satisfied are just and equitable and which the borrowers would have been reasonably entitled to expect if the mortgage lender had not been wound-up.
PART X
Miscellaneous
F110 [
Regulations relating to display of information.
137. — (1) The Minister for Enterprise, Trade and Employment may, after consulting the Bank, make regulations requiring persons who carry on businesses that are subject to regulation under the provisions of this Act designated in section 4(2) to display in a manner specified in the regulations at premises where the businesses are carried on, and to which the public have access, prescribed information about the businesses.
(2) The Minister for Finance may, after consulting the Director, make regulations requiring persons who carry on businesses that are subject to regulation under the provisions of this Act designated in section 8G(2) to display in a manner specified in the regulations at premises where the businesses are carried on, and to which the public have access, prescribed information about the businesses. ]
Annotations:
Amendments:
F110
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 38, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 23(3).
Restrictions as to use of inertia selling provisions in agreements.
138.— (1) A person shall not insert in any agreement or in any proposal form or application form used in connection with the agreement provisions which require the consumer to indicate positively that he does not wish to obtain credit, purchase or hire any goods or avail of any service in relation to the agreement.
(2) Where any amount is due to a third party as a result of the use of a provision as described in subsection (1), the person who inserted the provision shall be liable for payment of that amount.
Circulars to minors.
139.— A person shall not knowingly, with a view to financial gain, send to a minor any document inviting the minor to—
( a) borrow credit,
( b) obtain goods on credit or hire,
( c) obtain services on credit, or
( d) apply for information or advice on borrowing credit or otherwise obtaining credit or hiring goods.
Prohibition on exclusion of obligations or rights in agreements.
140.— Except where otherwise provided for in this Act, a creditor or an owner—
( a) shall not, in any agreement—
(i) exclude or restrict any liability imposed on any person or any right conferred on a consumer, or
(ii) impose any further liability in addition to any liability imposed on a consumer,
by this Act, and
( b) shall not be entitled to enforce any agreement (other than a housing loan) which so excludes or restricts any such liability or imposes any such further liability.
Statements purporting to exclude or restrict liabilities or rights.
141.— A person shall not in the course of a business do any of the following:
( a) display on any part of any premises a notice,
( b) publish or cause to be published an advertisement,
( c) supply goods bearing or goods in a container bearing a statement, or
( d) furnish or cause to be furnished a document,
which purports to exclude or restrict any liability imposed on any person or any right conferred on a consumer by this Act.
Duty to disclose information concerning financial standing of consumer.
142.— (1) Where a creditor or an owner refuses to enter into an agreement with a consumer, he shall disclose to the consumer the name and address of any person from whom he sought information concerning the financial standing of the consumer who gave information which influenced the refusal, within 14 days after receiving a request in writing to that effect from the consumer.
(2) Subsection (1) does not apply to a request—
( a) received more than 28 days after the refusal, or
( b) which relates to information to which the Data Protection Act, 1988, applies being data within the meaning of that Act.
F111 [ (3) Subject to subsection (4) , a person who has supplied information to a creditor or an owner in respect of the financial standing of a consumer in respect of an agreement shall provide the consumer with a copy in legible form of any information held by the person concerning the financial standing of the consumer. The information must be provided within 14 days after the person has received from the consumer a request in writing to that effect, together with the requisite fee.
(3A) For the purposes of subsection (3) , the requisite fee is —
( a ) if the matter arises under a provision designated under section 4(2) — € 6.30 or, if the Minister for Enterprise, Trade and Employment by order specifies some other amount, that other amount, or
( b ) if the matter arises under a provision designated by section 8H(2) — the fee (if any) prescribed under section 33K of the Central Bank Act 1942, for the purposes of this section. ]
(4) Subsection (3) does not apply to a request—
( a) received more than 28 days after the name and address referred to in subsection (1) has been given, or
( b) which relates to information to which the Data Protection Act, 1988, applies being data within the meaning of that Act.
Annotations:
Amendments:
F111
Substituted and inserted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 39, S.I. No. 160 of 2003.
Correction of incorrect information.
143.— (1) Where a consumer has been given information under section 142 which he considers is incorrect the consumer may within 28 days of receipt give notice to the person requiring the removal or the amendment of the information.
(2) A person referred to in subsection (1) shall within 28 days after receiving a notice under that subsection inform the consumer that he has—
( a) removed the information,
( b) amended the information, or
( c) taken no action.
F112 [ (3) If the consumer is dissatisfied with any action taken by a person under subsection (1) and the matter arises under a provision designated under section 4(2) , the consumer may request in writing the Director to investigate the matter. The request must be accompanied by the prescribed fee.
(4) If, after considering a request made under subsection (3) , the Director decides to investigate the matter, the Director may make such direction as the Director considers appropriate with respect to the information concerned. The person to whom any such direction is given shall comply with the direction.
(5) If the consumer is dissatisfied with any action taken by a person under subsection (1) and the matter arises under a provision designated under section 8G(2) , the consumer may request in writing the Bank to investigate the matter. The request must be accompanied by the prescribed fee.
(6) If, after considering a request made under subsection (5) , the Bank decides to investigate the matter, it may make such direction as it considers appropriate with respect to the information concerned. The person to whom any such direction is given shall comply with the direction.
(7) For the purposes of this section, the prescribed fee is —
( a ) if the request is made under subsection (3) — € 6.30 or, if the Minister for Enterprise, Trade and Employment by order specifies some other amount, that other amount, or
( b ) if the request is made under subsection (5) — the fee (if any) prescribed under section 33K of the Central Bank Act 1942 , for the purposes of this subsection. ]
Annotations:
Amendments:
F112
Substituted and inserted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 40, S.I. No. 160 of 2003.
PART XI
Credit Intermediaries
Credit intermediaries.
144.— F113 [ (1) Subject to subsection (2) , a person shall not engage in the business of being a credit intermediary unless the person —
( a ) is the holder of an authorisation granted for that purpose by the Director, and
( b ) holds a letter of recognition from each undertaking on whose behalf the person is a credit intermediary. ]
(2) The provisions of subsection (1) do not apply to a person who holds a written authorisation under section 97 , which is for the time being in force, and who, apart from the business to which that authorisation relates, is not otherwise engaged in the business of being a credit intermediary.
(3) A holder of an authorisation shall only engage in the business of being a credit intermediary in the name specified in the holder’s authorisation.
(4) An application for an authorisation shall be in writing and in such form as the Director may determine and shall contain—
( a) the true name of the applicant,
( b) the name under which the applicant trades,
( c) the name of any undertaking for which the applicant acts or intends to act as a credit intermediary,
( d) the address of any business premises of the applicant to which the application relates, and
( e) such other information that the Director may require.
F114 [ (5) An application for an authorisation must be accompanied by the requisite fee.
(6) For the purposes of subsection (5) , the requisite fee is —
( a ) in the case of a company or partnership, € 630 or, if the Minister for Enterprise, Trade and Employment by order specifies some other amount for the purpose of this paragraph, that other amount, and
( b ) in the case of a sole trader, € 315 or, if the Minister for Enterprise, Trade and Employment by order specifies some other amount for the purpose of this paragraph, that other amount. ]
(7) An authorisation shall be valid for the period of 12 months commencing on the date specified therein and shall expire at the end of that period.
(8) An authorisation shall state—
( a) the true name of the holder,
( b) the name under which the holder is authorised to engage in the business of being a credit intermediary,
( c) the address of the business premises of the holder, and
( d) the name of each of the undertakings for which he acts as a credit intermediary.
(9) The Director may refuse to grant an authorisation on one or more of the following grounds, namely, that—
( a) the application does not satisfy the conditions specified in subsection (1) (a) (ii),
( b) the applicant or any business with which he was connected was, during the previous 5 years, convicted of a criminal offence,
( c) the applicant is the holder of—
(i) a bookmaker’s licence issued under the Betting Act, 1931,
(ii) a licence for the sale of intoxicating liquor granted under the Licensing Acts, 1833 to 1994,
(iii) a gaming licence issued under the Gaming and Lotteries Act, 1956,
(iv) a pawnbroker’s licence granted under the Pawnbrokers Act, 1964, as amended by this Act, or
(v) a moneylender’s licence,
F115 [ ( d ) the applicant has failed to provide satisfactory evidence that a current tax clearance certificate issued in relation to the authorisation has been issued in accordance with the provisions of F116 [ section 1094 of the Taxes Consolidation Act, 1997 ] , ]
( e) the applicant is not, or is no longer, in the opinion of the Director, a fit and proper person to carry on the business of credit intermediary, or
( f) the applicant has failed to comply with any regulations made under subsection (10).
F117 [ (9A) ( a ) Where in relation to an authorisation —
(i) an application in accordance with F116 [ section 1094 of the Taxes Consolidation Act, 1997 ] , for a tax clearance certificate has been made —
(I) not less than four months prior to the commencement date of such an authorisation, and
(II) a tax clearance certificate has not yet been issued or refused,
or
(ii) a tax clearance certificate has been refused and an appeal against such refusal has been made and accepted in accordance with subsection (6) of the said F116 [ section 1094 ] ,
and in either case, the authorisation could, but for the provisions relating to a tax clearance certificate, have been issued, then —
(I) in a case where an authorisation has been granted in respect of the previous authorisation period, such authorisation may continue in force beyond its latest expiry date pending —
(A) the issue or refusal of a tax clearance certificate, or
(B) in the case of an appeal, the final determination of that appeal,
and
(II) in a case where an authorisation has not been granted in respect of the previous authorisation period, an authorisation may be issued temporarily and remain in force pending —
(A) the issue or refusal of a tax clearance certificate, or
(B) in the case of an appeal, the final determination of that appeal:
Provided that the amount of the fee that would be payable on the application for the authorisation is duly deposited with the Director.
( b ) Every authorisation issued temporarily or continued in force in accordance with paragraph (a) shall, while it remains in force, be deemed to be an authorisation within the meaning of this section.
( c ) Where —
(i) a determination is made to issue a tax clearance certificate, in respect of an application referred to in subparagraph (i) of paragraph (a) , or
(ii) the final determination of an appeal referred to in subparagraph (ii) of paragraph (a) is to the effect that the application for a tax clearance certificate in relation to an authorisation is an acceptable application,
and where the tax clearance certificate has been issued, the authorisation continued in force or issued temporarily under this subsection shall expire upon the grant of an authorisation under this section and the duty deposited shall be set against the appropriate duty payable on the grant of the authorisation.
( d ) Where —
(i) a determination is made to refuse a tax clearance certificate, in respect of an application referred to in subparagraph (i) of paragraph (a) , or
(ii) the final determination of an appeal under subparagraph (ii) of paragraph (a) is to the effect that the refusal of an application for a tax clearance certificate in relation to an authorisation is a valid refusal,
the authorisation continued in force or issued temporarily under this subsection shall expire not later than seven days after such refusal or after the determination of such appeal, and the amount of any duty deposited in excess of the proportion of that duty attributable to the period when the authorisation was temporarily in force shall be repaid. ]
F118 [ (10) The Minister for Enterprise, Trade and Employment may make regulations prohibiting the holder of an authorisation from acting as or claiming to be a credit intermediary, unless there is in force in respect of that holder a policy of professional indemnity insurance that complies with such requirements as are specified in those regulations. ]
(11) The Director may suspend or revoke an authorisation if he is satisfied that since becoming the holder of an authorisation, a credit intermediary or any business with which he is connected has been convicted of a criminal offence or a credit intermediary has become the holder of a licence referred to in subsection (9) (c) or has failed to comply with any regulations made under subsection (10).
(12) Whenever the Director proposes to refuse to grant, suspend or revoke an authorisation he shall notify the applicant or the holder of the authorisation, as the case may be, of his proposal and shall, if any representations are made to him in writing by such applicant or holder within 14 days of the notification, consider the representations.
(13) Whenever the Director, having considered any representations that may have been made under subsection (12), decides to refuse to grant, suspend or revoke an authorisation, he shall notify the applicant for, or as the case may be, the holder of the authorisation, of the decision and such applicant or holder may, within 7 days of receipt of such notification, appeal against such decision to the judge of the Circuit Court within whose Circuit the business to which the authorisation relates is to be carried on.
(14) A notification referred to in subsection (12) or (13) shall be delivered personally or sent by pre-paid registered post to the business address of the applicant for an authorisation or the holder of the authorisation concerned, as the case may be.
(15) Where a notification under subsection (12) or (13) relates to a refusal to grant a second or subsequent authorisation or a suspension or revocation of an authorisation, the refusal, suspension or revocation shall take effect upon the expiration of the 7 days allowed for the appeal.
(16) Where an appeal is made under subsection (13) by an applicant for a second or subsequent authorisation in respect of a refusal to grant such authorisation or by a holder of an authorisation in respect of a suspension or revocation of an authorisation, the refusal, suspension or revocation shall stand suspended until the appeal is determined or withdrawn and notwithstanding subsection (7) any authorisation held by the applicant at the time of the appeal shall continue in force until the determination or withdrawal of the appeal.
(17) On the hearing of an appeal under subsection (13) in relation to the decision of the Director to refuse to grant, suspend or revoke an authorisation, the Circuit Court may either confirm the decision or allow the appeal and, where an appeal is allowed, the Director shall grant the authorisation or shall not suspend or revoke the authorisation, as the case may be.
(18) A decision of the Circuit Court on an appeal under subsection (13) shall be final save that, by leave of that Court, an appeal from the decision shall lie to the High Court on a specified question of law.
(19) In an appeal under subsection (13) the Director shall not be awarded or ordered to pay costs.
(20) In this section “ authorisation” means a credit intermediaries authorisation.
Annotations:
Amendments:
F113
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 41(a), S.I. No. 160 of 2003, subject to transitional provisions in s. 36 and sch. 3 paras. 23(1) and 25.
F114
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 41(b), S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 23(1).
F115
Substituted (1.01.1998) by Finance Act 1997 (22/1997), s. 160(2)(c)(i), commenced as per subs. (3)(c).
F116
Substituted (6.04.1997) by Taxes Consolidation Act 1997 (39/1997), s. 1100 and sch. 31, commenced as per s. 1097.
F117
Inserted (1.01.1998) by Finance Act 1997 (22/1997), s. 160(2)(c)(ii), commenced as per subs. (3)(c).
F118
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 41(c), S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 23(1).
Obligation to display copy of credit intermediaries authorisation.
145.— The holder of a credit intermediaries authorisation shall display in a prominent position in any premises where the holder engages in the business of being a credit intermediary—
( a) an authorised copy of the authorisation, and
( b) a notice stating clearly the name of any undertaking for whom the holder acts as a credit intermediary.
Prohibition on alteration or falsification of credit intermediaries authorisation.
146.— (1) A person, other than the Director or an officer of the Director acting on behalf of the Director, shall not alter or attempt to alter a credit intermediaries authorisation or an authorised copy thereof.
(2) A person shall not falsify or attempt to falsify a credit intermediaries authorisation or any authorised copy thereof.
Amendment of credit intermediaries authorisation.
147.— (1) Where the holder of a credit intermediaries authorisation ceases to act on behalf of any undertaking specified in the authorisation or commences to act as a credit intermediary on behalf of any undertaking not specified in the authorisation, the holder shall upon such cessation or commencement inform in writing the Director of the changes and forward the authorisation to the Director, and the Director shall accordingly, as he sees fit, amend the authorisation or issue another authorisation incorporating the change.
(2) The holder of a credit intermediaries authorisation to whom subsection (1) applies shall comply with the requirements of that subsection.
Nature of “ finance arranged” to be explained to consumer.
148.— Where a consumer negotiates with a seller in respect of the acquisition of goods and the seller, being a credit intermediary, offers, or is requested by the consumer, to arrange a financial accommodation for the consumer in respect of the acquisition of the goods, the seller shall, as soon as may be reasonable, before any agreement, in relation to the goods under negotiation resulting from the offer or request, is entered into, disclose in writing to the consumer—
( a) the nature of the financial accommodation,
( b) the amount, number and frequency of payments and the total amount that the consumer would have to pay under an agreement, and, where applicable, the APR,
( c) who has the property in the goods during the agreement,
( d) the name of any undertaking for which the seller acts as a credit intermediary, and
( e) that the seller receives a commission, payment or consideration of any kind from an undertaking for arranging any such financial accommodation between the consumer and the undertaking.
PART XII
Obligation on credit Institutions to Notify Director of all Customer Charges
F119 [ Customer charges, etc., by credit institutions that are subject to regulation by the Bank.
149. — (1) A credit institution or, subject to the Competition Act 1991 , a group of any such credit institutions in respect of a service offered jointly by the group, shall notify the Bank of every proposal —
( a ) to increase any charge that has been previously notified to the Bank, or
( b ) to impose any charge in relation to the provision of a service to a customer or to a group of customers, that has not been previously notified to the Bank.
(2) Every notification under subsection (1) must be accompanied by —
( a ) subject to subsection (4) , such fee as the Bank may decide with respect to each notification, being a fee that does not exceed the prescribed maximum amount, and
( b ) a statement of the commercial justification for the proposal, including a detailed statement of cost, and
( c ) details of the estimated amount of additional income accruing from the proposal.
(3) For the purposes of subsection (2)(a) , the prescribed maximum amount is —
( a ) € 31,750, or
( b ) if some other amount is prescribed by regulations made for the purposes of this subsection — that other amount.
(4) The Bank may waive or reduce the fee referred to in subsection (2) if the payment of the fee would, in the opinion of the Bank, be unfair to the credit institution having regard to —
( a ) the impact of any increase in or imposition of charges on customers, and
( b ) the number of customers affected by any increase in or imposition of charges, and
( c ) the additional income likely to accrue from any increase in or imposition of charges, and
( d ) any other matters that the Bank considers appropriate.
(5) Subject to subsection (6) , the Bank may, within F120 [ 3 months ] of receipt of a notification under subsection (1) , direct a credit institution —
( a ) to refrain from imposing or changing a charge in relation to the provision of a service to a customer or to a group of customers, without the prior approval of the Bank, and
( b ) to publish, in such manner as may be specified by the Bank from time to time, information on any charge in relation to the provision of a service to a customer or to a group of customers.
(6) If a notification under subsection (1) is in respect of a proposal to impose a charge for a new service that was not previously offered to its customers, or is being offered as a choice to and in a materially different way to existing services, the Bank may, within F121 [ 3 months ] of receipt after the date of the notification, direct the credit institution —
( a ) to refrain from imposing or changing a charge in relation to the provision of a service to a customer or to a group of customers, without the prior approval of the Bank, and
( b ) to publish, in such manner as may be specified by the Bank from time to time, information on any charge in relation to the provision of a service to a customer or to a group of customers.
F122 [ (6A) In calculating the periods of 3 months specified in subsections (5) and (6) no account shall be taken of any day on which any information required by the Bank to be provided by the credit institution for the performance of the Bank ’ s functions under this section has not yet been so provided. ]
(7) A direction under this section may be expressed to apply —
( a ) to every credit institution or to credit institutions carrying on a specified type of banking or financial business, or
( b ) to all services provided to a customer or to a group of customers by credit institutions or to specified services or to services of a specified kind, or
( c ) to a specified time or times or during a specified period or periods.
(8) The direction must —
( a ) be communicated to every credit institution concerned, and
( b ) if not communicated in writing, be confirmed in writing to every such credit institution as soon as possible afterwards, and
( c ) have effect in accordance with its terms.
(9) The Bank shall, in exercising the powers conferred by this section, have regard to —
( a ) the promotion of fair competition between —
(i) credit institutions, and
(ii) credit institutions carrying on a particular type of banking or financial business,
( b ) the statement of commercial justification referred to in subsection (2)(b) , and
( c ) a credit institution passing any costs on to its customers or a group of its customers in proposing to impose or change any charge, in relation to the provision of a service to a customer or a group of its customers, and
( d ) the effect on customers or a group of customers of any proposal to impose or change any charge in relation to the provision of such service.
(10) The Bank may amend or revoke a subsisting direction under this section and may amend or revoke a subsisting direction, which has been amended.
(11) The Bank may exempt a credit institution from the obligation to make a notification under subsection (1) in respect of any charge which has been individually negotiated bona fide with the credit institution by a customer, or by or on behalf of a group of customers, of the credit institution.
(12) The Bank shall —
( a ) keep under general review the terms and conditions applying to the provision of services to customers by credit institutions, and
( b ) require a credit institution to discontinue or refrain from the use of those terms and conditions that are, or are likely to be regarded as, unfair, and
( c ) if the credit institution fails to comply with a requirement under paragraph (b) , bring proceedings in the High Court for an order prohibiting the use, or the continued use, of those terms and conditions.
F123 [ (12A) A credit institution shall not impose a charge for providing a service to a customer or group of customers if —
( a ) the charge has not been previously notified to the Bank or to the Director, or
( b ) the charge exceeds the charge notified for the service in accordance with subsection (1) , or
( c ) the charge does not comply with a direction issued by the Bank under this section.
(12B) The Bank may, by notice given in writing, require a specified credit institution, or credit institutions of a specified class, to publish in such publications, and within such timeframes, as are specified in the notice details of the amounts of charges notified to the Bank under this section.
(12C) A credit institution to which a notice has been given under subsection (12B) shall comply with the notice within the timeframe specified in the notice. ]
(13) In this section —
‘ service ’ means any service provided by a credit institution to a customer in respect of the following —
( a ) making and receiving payments;
( b ) providing foreign exchange facilities;
( c ) providing and granting credit;
( d ) maintaining and administrating transaction accounts used for the services specified by this subsection, including issuing statements;
( e ) any other service that may be pre-scribed by regulations for the purposes of this section;
‘ charge ’ includes a penalty or surcharge interest by whichever name called, being an interest charge imposed in respect of arrears on a credit agreement or a loan, but does not include any rate of interest or any charge, cost or expense levied by a party other than a credit institution in connection with the provision of a service to the credit institution or the customer and that is to be discharged by the customer.
(14) For the purposes of this section, a notification made to the Director of Consumer Affairs before the substitution of this section by item 42 of Part 21 of Schedule 1 to the Central Bank and Financial Services Authority of Ireland Act 2003, is taken to have been made to the Bank. ]
F124 [ (15) A direction given under section 28 of the Central Bank Act 1989 and in force immediately before the coming into operation of section 78 (d) of the Central Bank (Supervision and Enforcement) Act 2013 is to be treated as continuing in effect as if given under this section and accordingly is a subsisting direction under this section for the purposes of subsection (10) .
(16) The duty imposed by subsection (1) shall not apply to a relevant new credit institution until the end of the period of 3 years after it commences business in the State; but at the end of that period, the credit institution shall notify the Bank of all decisions to impose charges in relation to the provision of any service to a customer or to a group of customers during that period and of any proposal to do so which is not implemented during that period.
(17) A notification under subsection (16) shall be treated as a notification under subsection (1) for the purposes of this section; and references in this section to a proposal include a decision to impose charges notified under subsection (16) .
(18) In subsection (16) ‘ relevant new credit institution ’ means a credit institution which commences business as a credit institution in the State after the coming into operation of section 78 (d) of the Central Bank (Supervision and Enforcement) Act 2013 and is not when it does so a related undertaking (within the meaning of that Act) of another credit institution carrying on business as a credit institution in the State. ]
Annotations:
Amendments:
F119
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 42, S.I. No. 160 of 2003, subject to transitional provision in s. 36 and sch. 3 para. 20(1).
F120
Substituted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 78(a), S.I. No. 287 of 2013.
F121
Substituted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 78(b), S.I. No. 287 of 2013.
F122
Inserted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 78(c), S.I. No. 287 of 2013.
F123
Inserted (1.08.2004) by Central Bank and Financial Services Authority of Ireland Act 2004 (21/2004), s. 33 and sch. 3 pt. 12 item 4, S.I. No. 455 of 2004.
F124
Inserted (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 78(d), S.I. No. 287 of 2013.
PART XIII
Moneylenders, Credit and Mortgage Intermediaries Registers
F130 [
Credit intermediaries register.
151. — (1) The Director shall establish and keep a register of credit intermediaries.
(2) The register is to be kept in a form determined by the Director.
(3) The credit intermediaries register must contain the following particulars:
( a ) the information referred to in section 144(8) ;
( b ) any revocation or suspension of a credit intermediaries authorisation;
( c ) such other particulars as the Minister for Enterprise, Trade and Employment from time to time prescribes.
(4) The Director shall keep the register at the Director ’ s office of business and shall make the register available for inspection by members of the public during those business hours. If the register is kept in a form that is not immediately legible, the Director shall make available a version of the register that is in legible form.
(5) A person who attends the Director ’ s office during the hours when it is open for business is entitled, on request —
( a ) to inspect the register without charge or make enquiries regarding its contents, and
( b ) on payment of the prescribed fee, to obtain a copy of any entry in the register.
(6) For the purpose of subsection (5)(b) , the prescribed fee is —
( a ) € 6.25, or
( b ) if some other amount is prescribed by the Minister for Enterprise, Trade and Employment for the purposes of this subsection — that other amount. ]
Annotations:
Amendments:
F130
Substituted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 45, subject to transitional provisions in s. 36 and sch. 3 para. 20(3), S.I. No. 160 of 2003.
F131 [
Registers of moneylenders and mortgage intermediaries.
151A. — (1) The Bank shall establish and keep —
( a ) a register of moneylenders, and
( b ) a register of mortgage intermediaries.
(2) Each of the registers is to be kept in a form determined by the Bank.
(3) The register of moneylenders must contain the following particulars:
( a ) the information referred to in section 93(8) ;
( b ) any revocation, suspension or variation of the terms or conditions of a moneylender ’ s licence;
( c ) such other particulars as the Minister for Finance prescribes from time to time.
(4) The mortgage intermediaries register must contain the following particulars:
( a ) the information referred to in section 116(8) ;
( b ) any revocation or suspension of a mortgage intermediaries authorisation;
( c ) such other particulars as the Minister for Finance prescribes from time to time.
(5) A person is at all reasonable times entitled to make enquiries regarding the contents of either of the registers.
(6) The Bank shall ensure that each of the registers is at all reasonable times open for inspection by members of the public. If a register is kept in a form that is not immediately legible, the Bank shall make available to any member of the public who wishes to inspect the register a version of the register that is in legible form.
(7) A person is entitled to obtain a copy of any entry in either of the registers on payment to the Bank of a fee of such amount (if any) as may be prescribed under section 33K of the Central Bank Act 1942 , for the purposes of this subsection.
(8) The Bank may, in relation to such class or classes of persons as it decides, waive or reduce a fee prescribed for the purposes of subsection (7) . ]
Annotations:
Amendments:
F131
Inserted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 46, S.I. No. 160 of 2003, subject to transitional provisions in s. 36 and sch. 3 para. 20(3).
F132 [
Certified copy of entry in register to be admissible in evidence.
151B. — (1) Every document purporting to be a copy of an entry in a register kept under section 151 and to be certified by a person employed in the office of the Director to be a true copy of the entry is, without proof of the person ’ s signature or proof that the person was such officer, admissible in all legal proceedings as evidence of its contents.
(2) Every document purporting to be a copy of an entry in a register kept under section 151A and to be certified by an authorised person to be a true copy of the entry is, without proof of the person ’ s signature or proof that the person was an authorised person, admissible in all legal proceedings as evidence of its contents.
(3) In subsection (2) , ‘ authorised person ’ means the Bank, a person authorised by the Bank for the purposes of that subsection, a delegate of the Bank or a member, officer or employee of such a delegate. ]
Annotations:
Amendments:
F132
Inserted (1.05.2003) by Central Bank and Financial Services Authority of Ireland Act 2003 (12/2003), s. 35(1) and sch. 1 pt. 21 item 46, S.I. No. 160 of 2003, subject to transitional provisions in s. 36 and sch. 3 para. 20(3).