Consumer Sale Contracts
Purpose of the 2022 Act
The purpose of this Consumer Rights Act 2022 is to consolidate and update the legislative provisions that regulate the main types of consumer contract. It also gives effect to Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services, Directive (EU) 2019/771 on certain aspects concerning contracts for the sale of goods, and to the main provisions of Directive (EU) 2019/2161 on the better enforcement and modernisation of Union consumer protection rules.
The Consumer Rights Act 2022 gives effect to Directives 2019/770 and 2019/771 and the main provisions of Directive 2019/2161. It includes provisions in consumer contracts for the rights and remedies for (i) the sale of goods, (ii) the supply of digital content and digital services, and (iii) the supply of non-digital services. There are provisions for consumer information and related rights and consumer rights on the cancellation of distance and off-premises contracts and enhanced unfair terms in consumer contracts are included.
It also amends the Consumer Protection Act 2007 which will strengthen the enforcement powers of the Competition and Consumer Protection Commission, the Consumer Credit Act 1995 to provide for rights and remedies in hire-purchase agreements and consumer-hire agreements and section 12(13) of the Competition and Consumer Protection Act 2014.
Offences False Description
It is an offence for a trader to make known representations purporting to exclude or restrict the rights of the consumer.It shall be an offence for a trader to do any of the following things in relation to such a representation:
- to display on any part of any premises a notice that includes any such representation;
- to publish or cause to be published an advertisement which contains any such representation;
- to supply goods bearing, or digital content or a digital service displaying in any form, any such representation;
- otherwise to furnish or to cause to be furnished a document including any such representation.
The following are treated as a representation:
- a representation to the effect that reimbursement will not be made for goods, digital content, a digital service or a service sold or supplied under a contract for any such goods, digital content, digital service or service so sold) that are not in conformity with the contract concerned;
- a representation to the effect that reimbursement for relevant items that are not in conformity with the contract concerned will be made only in the form of credit notes or gift vouchers;
- a representation to the effect that relevant items that are not in conformity with the contract concerned will not be replaced, repaired, remedied or otherwise brought into conformity with the contract concerned; or
A “representation” includes—
- any oral, written, visual, descriptive or other representation by a trader, including any commercial communication, marketing or advertising, and
- a notice or other document used or relied on by a trader in connection with a contract with a consumer.
Sales contracts
A sales contract is one where the trader transfers or undertakes to transfer ownership of goods to a consumer and the consumer pays or undertakes to pay the price of the goods or transfers or undertakes to transfer ownership of the goods to the trader in payment of the price. Paying a price by the consumer includes using by way of payment any facility by which payment has been made.
A sales contract may be a transaction where the ownership of the goods is transferred from the trader to the consumer or will be transferred at a future time or subject to such a condition. An agreement to sell becomes a sale when time elapses or the condition is met for transfer of the ownership of the goods.
A sales contract may be absolute or conditional. It is conditional if the trader retains ownership of the goods until the conditions are met. It is non-conditional if it is a hire-purchase agreement. In this section, ‘hire- purchase agreement’ has the same meaning as it has in the Consumer Credit Act 1995.
The Minister may make regulations to apply the legislation to contracts for the sale of goods with digital elements where the consumer provides, or undertakes to provide, personal data instead of paying the price to the trader. Provision of personal data in this case is separate to where personal data is processed by the trader for the purpose of supplying the goods with digital elements or complying with necessary legal requirements.
The Minister may make regulations, having consulted as appropriate, where the specified contracts are on a significant scale and their regulation is in the interest of consumer protection and fair competition. The regulations may provide for the application of the legislation, as provided for in the regulations, to be subject to modifications as specified.
Passing of risk
Where a sales contract is concluded between a trader and a consumer, the goods remain at the trader’s risk until the consumer acquires physical possession of the goods. Where the goods are delivered to a carrier commissioned by the consumer, the goods are then at the consumer’s risk, without prejudice to the rights of the consumer against the carrier.
Delivery of goods under sales contract
Where a sales contract is concluded between a trader and a consumer, the trader must deliver the goods to the consumer in accordance with the contract. Unless otherwise agreed, the trader must deliver the goods by transferring the physical control of the goods to the consumer not later than 30 days after concluding the contract. If delivery does not happen within an agreed period or within the 30 days, the consumer is to give appropriate additional time for delivery. This does not apply if the trader refused to deliver the goods or if delivery within the agreed period is essential.
If delivery of the goods is refused or they are not delivered within the agreed period, the consumer has the right to terminate the contract. Where the consumer has the right to terminate the contract, the consumer does as provided in the Act and the trader must comply with the specified obligations.
Instalment deliveries
Unless otherwise agreed, the consumer is not required to accept delivery of goods by instalments. The consumer may terminate the contract if the delivery does not conform to the contract regarding instalments. The right to terminate only applies to the goods delivered in non-conforming instalment(s) unless the consumer cannot be expected to accept the goods delivered in the conforming instalment(s). The consumer will be entitled to reimbursement only for non- conforming instalment(s). Where the consumer has the right to terminate the contract he will do so as specified and the trader will comply with his obligations accordingly.
Right of redress of trader
A trader is liable to the consumer due to an act or omission of a person in the chain of transactions in the contract, he may pursue remedies against that person.
Exclusion or limitation of liability of trader
A term of a contract between the trader and the consumer will not exclude or restrict a trader’s liability under various listed provisions. Any such term will not be binding on the consumer. Liability will not be excluded or restricted in relation to rights or remedies or enforcement of such rights/remedies, being put at a disadvantage for pursuing such rights/ remedies, for rules of evidence or procedure or preventing/limiting an obligation.
An agreement in writing to engage with an alternative dispute resolution procedure does not exclude or restrict liability. A trader who contravenes the above provision commits an offence.
Liability for commercial guarantee
A commercial guarantee is binding on the guarantor according to the commercial guarantee statement and associated advertising, at or before the conclusion of the contract. Where the producer offers a commercial guarantee of durability of the goods, the producer is liable during the period of the guarantee of durability for repair or replacement of the goods and may offer more favourable conditions. The commercial guarantee will be binding in relation to the most advantageous conditions, i.e., these may have been set out in the associated advertising.
In relation to a sales contract, that a trader will be liable for a commercial guarantee to a consumer that was provided by another guarantor unless the contrary is expressed by the trader. Where a trader gives his commercial guarantee to a consumer it is presumed that he is not liable under any commercial guarantee from another guarantor which the trader has given to the consumer. The liability of a trader to a consumer is without prejudice to the rights of the consumer under the last section.
In relation to a sales contract, where a commercial guarantee is provided to a consumer in relation to goods sold and during the period it subsists, the goods are acquired by another consumer, the benefits of the guarantee will apply to that consumer against the guarantor or the trader.
A consumer may maintain an action against a guarantor, or person liable for guarantor’s guarantee, who fails to comply with the terms of the guarantee, in relation to a sales contract, as if that person had sold the goods to the buyer and had committed a breach of warranty. Where an action is brought, a court may order the guarantor or other person liable to pay damages to the consumer. In such a case, the court may provide the opportunity to perform the obligations under the guarantee to the satisfaction of the court within a time set by the court.
Commercial Guarantee Statement
Where a commercial guarantee is provided in relation to goods sold under a sales contract, the statement will be given to the consumer on a durable medium by the relevant time and will contain specific details. The commercial guarantee will be binding for the guarantor irrespective of non- compliance with the above provisions regarding the statement.
Exclusion or limitation of rights
In relation to a sales contract, a commercial guarantee must not exclude or limit the rights of the consumer under any enactment or rule of law, add extra obligations to those under the contract or purport to give the guarantor or person acting on the guarantor’s behalf, the sole decision on conformity of the goods with the contract or whether the consumer is otherwise entitled to make a claim under the commercial guarantee. Otherwise, a commercial guarantee will not be binding on the consumer. A guarantor who gives a commercial guarantee which contravenes this provision commits an offence.
Rights of recipient of Gift
The rights and remedies that apply to the consumer, who is party to the sales contract also apply to another consumer who is given the goods as a gift under the sales contract.
Rights of certain users of motor vehicle
A consumer who purchases a motor vehicle which is not in conformity with the sales contract and the lack of conformity makes it dangerous, any person using the vehicle with the consent of the consumer and suffers loss as a result, may claim an action for damages against the trader as if they were the consumer. “Motor vehicle” is defined. The Minister, following consultations as appropriate, may make regulations for this purpose where he is satisfied that it is necessary in the interests of consumer protection.