Distance Contracts
Information requirements for a distance contract
A trader must provide the information specified in Schedule 3 in a clear and comprehensible manner and provide the model cancellation form set out in Part 2 of Schedule 4, where the right to cancel the contract exists, before the distance contract is binding. In the case of a public auction the relevant information may be provided in relation to the auctioneer rather than the trader on whose behalf the auctioneer has acted and in this case the specified information will be provided in relation to that trader. Information provided on a durable medium, must be legible.
All means of communication provided by the trader will enable the consumer to contact the trader quickly and efficiently. The information or the cancellation form must be completed by meeting specific criteria. A trader who telephones the consumer to conclude the contract must, at the beginning of the call, disclose his identity and the purpose of the call.
For a contract that is concluded through a trading website, the trader must ensure that it shows clearly whether any delivery restrictions apply, which means of payment are accepted and this information is indicated at or before the beginning of the ordering process. The information forms part of the contract and must not be altered without the express agreement of the trader and consumer. The consumer is not liable for charges/costs specified in Schedule 3 where the trader has not complied with the requirements). A trader who contravenes the obligation commits an offence.
Additional Requirements Online Marketplace
The provider of the online marketplace must provide specific information to the consumer before he is bound by the distance contract or offer, such as the main parameters determining the ranking of offers presented; whether the third party offering goods, services or digital content is a trader or not; where the third party is not a trader that EU consumer rights do not apply to the contract and how any contract obligations are shared between the third party and the provider of the online marketplace.
The information provided by the provider of the online marketplace must be made available in a specific section of the online interface. Ranking means the prominence given to goods, services, digital content or digital services by the provider. A provider of the online marketplace who the obligations commits an offence. Definitions of “online marketplace” and “provider of an online marketplace” are specified.
Additional Requirements Electronic Means Distance Contracts
Distance contracts concluded by electronic means includes package travel contracts and contracts for passenger services and this section will apply with modifications to packages and linked travel arrangements regarding reference to trader/organiser, consumer/traveller, and package travel contract. The trader must provide the relevant information in Schedule 3 to the consumer, where they are required to pay, before an order is placed.
The trader must ensure that the consumer explicitly acknowledges, when placing the order, the obligation to pay and any function used to place an order must be so labelled. Where the trader does not comply with this requirement, the consumer is not bound by the contract or order. A trader who contravenes the obligation commits an offence.
Confirmation of Distance Contract
A trader must provide the consumer with confirmation of the concluded distance contract on a durable medium. The information specified in Schedule 3 must be included in the confirmation unless previously provided. The contract must contain the consumer’s acceptance of the loss of the right to cancel in the case of digital content not supplied on a tangible medium where performance began with the consumer’s prior consent.
The confirmation must be supplied within certain time parameters. A trader who contravenes any of the provisions in this section commits an offence.
Exceptions
The Provisions do not apply to a distance contract or an off-premises contract concluded between a trader and a consumer that is—
- a service contract, where the service has been fully supplied and the supply of the service began with the consumer’s prior express consent and acknowledgement that he or she will lose the right to cancel once the service has been fully supplied by the trader,
- a contract under which the trader supplies or undertakes to supply a digital service to the consumer and under which the consumer does not pay or undertake to pay the price of the digital service, where the digital service has been fully supplied,
- a contract under which the trader supplies or undertakes to supply a digital service to the consumer and under which the consumer pays or undertakes to pay the price of the digital service, where— the digital service has been fully supplied, and) the supply of the digital service began with the consumer’s prior express consent and acknowledgement that he or she will lose the right to cancel once the digital service has been fully supplied by the trader,
- a contract under which the trader supplies or undertakes to supply digital content that is not supplied on a tangible medium to the consumer and under which the consumer does not pay or undertake to pay the price of the digital content, where supply of the digital content has begun,
- a contract under which the trader supplies or undertakes to supply digital content that is not supplied on a tangible medium to the consumer and under which the consumer pays or undertakes to pay the price of the digital content, where— supply of the digital content has begun, the consumer provided prior express consent to the supply beginning during the cancellation period and an acknowledgement that he or she will thereby lose the right to cancel, and the trader provided confirmation of the contract as required by the legislation,
- a contract under which the trader supplies or undertakes to supply goods, a service or a digital service, whose price is dependent on fluctuations in the financial market that may occur during the cancellation period and that cannot be controlled by the trader,
- a contract for the supply of non-prefabricated goods made on the basis of an individual choice of, or decision by, the consumer,
- a contract for the supply of goods that are clearly personalised,
- a contract for the supply of goods that are liable to deteriorate or expire rapidly,
- a contract for the supply of sealed goods that—
- are not suitable for return for health protection and hygiene reasons, and were unsealed after delivery,
- a contract for the supply of goods that are, according to their nature, inseparably mixed with other items after their delivery,
- a contract for the supply of an alcoholic beverage where— the price has been agreed at the time of the conclusion of the contract, the delivery of the beverage is to take place more than 30 days after the conclusion of the contract, and the value of the beverage is dependent on fluctuations in the market that cannot be controlled by the trader,
- subject to subsection, a contract under which the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance,
- a contract for the supply of sealed audio or sealed video recordings or sealed computer software that were unsealed after delivery,
- a contract for the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications,
- a contract concluded at a public auction, or
- a contract for—the provision of accommodation other than for residential purposes, the transport of goods, car rental services,catering, or services related to leisure activities, where the contract provide for a specific date or period of performance.
It does apply to contracts for services in addition to urgent repairs or maintenance requested by the consumer and goods which are not replacement parts used in the maintenance or repair work, provided by the trader in the context of carrying out urgent repairs or maintenance.
Right to cancel
A consumer may cancel a distance or an off-premises contract during the cancellation period without providing a reason. No costs or liability is incurred by the consumer for doing so except those specifically allowed.
The cancellation period for service contracts, digital service contracts, contracts for the supply of digital content not supplied on a tangible medium, contracts for the supply of water, gas or electricity not supplied in a limited volume or set quantity or contracts for the supply of district heating expires on the expiry of 14 days beginning on the day the contract concluded.
In the case of specific contracts, within the context of the latter contracts, concluded due to an unsolicited visit to a consumer’s home or an excursion organised by a trader, the expiry of the cancellation period is 30 days beginning on the day the contract is concluded.
The cancellation period for a sales contract expires on the expiry of 14 days beginning on the day the consumer acquires the physical possession of the goods. This cancellation period also applies to sales contracts for multiple goods that are ordered in one order and for goods consisting of multiple lots or pieces, where the consumer acquires physical possession of the last of the goods or the last lot or piece.
The cancellation period for a sales contract for regular delivery of goods during a defined period expiring 14 days beginning the day the consumer acquires physical possession of the first of the goods. The cancellation period for sales contracts concluded by unsolicited visits/excursions organised by the trader expires on the expiry of the period of 30 days beginning on the day where goods are physically acquired.
In this context, the “consumer” is the person who acquires the physical possession of the goods as nominated by the consumer.
Omission of Information on Right to Cancel
If a trader does not provide a consumer with required information on the right to cancel the contract, the cancellation period expires on the expiry of 12 months beginning from the day it would have expired if the provision was complied with.
Where the trader provides the required information within 12 months of the day on which the cancellation period expires the cancellation period will expire instead on the expiry of 14 days beginning the day the consumer is so informed. For off-premises contracts, concluded due to an unsolicited visit/excursion organised by a trader to a consumer’s home, where the required information is notified, the expiry of the cancellation period is 30 days beginning the day the consumer is so informed. The information on the right to cancel must be provided.
Exercise of Right to Cancel
The consumer must inform the trader of his decision to cancel a distance contract or an off-premises contract before the expiry of the cancellation period. To do so he may use the model cancellation form in Part 2 of Schedule 4 or make an unequivocal statement in this regard.
Where the trader gives the option, the consumer may complete the form or statement on the trader’s website. In this case the trader will acknowledge receipt of the cancellation on a durable medium. The right to cancel is exercised by the consumer once the communication is sent before the end of the expiry period. The burden of proof is on the consumer in case of dispute.
Effects of Cancellation or Withdrawal
The exercise of the right to cancel a distance contract or an off-premises contract by the consumer terminates the obligations of consumer and trader to perform the contract. The withdrawal by the consumer of an offer to enter into a distance or an off-premises contract terminates any obligation on the consumer or trader to conclude the contact.
Where the consumer has cancelled the contract, the trader must refund all payments, including for delivery, to the amount equal to the cost of the least expensive type of standard delivery offered by him. Refunds must be made no later than 14 days after the day when the trader is informed of the cancellation.
In sales contracts, the trader may withhold a refund until the goods are returned or evidence of the return is provided, unless he offered to collect the goods. The same means of payment will be used for the refund as the consumer used, unless otherwise agreed. If a different means of payment is agreed, the consumer must not incur any fees as a result.
The trader must not use any content, other than personal data, provided by the consumer when using digital content or digital services supplied by the trader except in specific circumstances. The trader must provide this content, or other specified content to the consumer on request, free of charge, without hinderance and within a reasonable time.
Where a consumer cancels a contract, the trader may prevent any further use of the digital content or digital service by the consumer. A trader who contravenes any of the obligations commits an offence. Where the trader fails to refund the consumer, he will be liable in damages for any loss or damage suffered by the consumer as a result of that failure.
Return of Goods and Obligations of consumer in event of cancellation
The trader must collect the goods if he has offered to do so or it would not be possible to return them by post in the case of an off-premises contract, when a consumer cancels a sales contract. In this instance, the trader must collect the goods at his own expense. Otherwise, the consumer must send them back or hand them over to the trader or his representative no later than 14 days after the day he informed the trader of cancellation.
The consumer will pay the costs of return unless the trader has agreed to pay or has failed to inform the consumer that the latter must pay. The consumer who is required to return the goods must take reasonable care of them before returning and is liable for any diminished value of the goods.
There is no obligation on the consumer where the trader has failed to provide the information on the right to cancel. Where the consumer fails to return the goods as required, he will be liable in damages to any loss or damage suffered by the trader as a result of that failure. Where a consumer cancels a contract for the supply of digital content not supplied on a tangible medium or a digital service, he must not use it or make it available to any third person.
Performance of certain contracts during cancellation period
This applies in the case of specified contracts where the consumer is obliged to pay. Where the consumer wants the contract to begin during the cancellation period, the trader must require the consumer to request on a durable medium the performance of the contract during the cancellation period and to acknowledge that the right to cancel no longer exists once the contract is fully performed by the trader.
Where the consumer cancels during the cancellation period before the specified contracts have been fully supplied, the consumer must pay a proportionate amount for the supply provided prior to cancellation of the contract. The amount is based on the total price agreed or, if that is excessive, based on the market value of the service supplied.
The consumer is not required to pay for performance of the contract during the cancellation period if the trader has not provided information on the right to cancel or of the liability to pay reasonable costs or the consumer has not expressly requested performance during the cancellation period. The information on the right to cancel and on the consumer’s liability to pay the trader reasonable costs will be provided as set out under sections 103, 104 or 106.
Supply of digital content during cancellation period
The consumer who cancels a contract for the supply of digital content not supplied on a tangible medium during the cancellation period is not liable for the cost of supply during that period if they have not given prior express consent to the beginning of the performance before the expiry of the cancellation period, has not acknowledged in giving consent that the right to cancel would be lost or the trader has failed to provide confirmation of such consent or acknowledgement. The respective confirmations of such consent or acknowledgement must be provided as for an off- premises contract or for a distance contract.
Effects of cancellation on ancillary contract
Where a distance or an off-premises contract is cancelled by the consumer, any ancillary contract is automatically terminated without cost, other than limited specified costs. In this instance, the trader will inform any other trader with whom the consumer has an ancillary contract that it is terminated. The trader will reimburse all payments received from the consumer and the latter must return any goods delivered to the trader at the trader’s expense and not use any digital content or digital service supplied under the ancillary contract.
Any security provided under a terminated ancillary contract will be treated as having no effect and any property lodged in this regard must be returned immediately by the trader or a person other than a trader. This is without prejudice to Regulation 18 of the European Communities (Consumer Credit Agreements) Regulation 2010. Contracts for financial services may be ancillary contracts for the purposes of this section. “Ancillary contract” is defined.
Fees for use of means of payment
A trader will not charge fees to consumers above the costs borne to use the means of payment. If he does so, and the consumer pays that fee, the trader must reimburse the excess charged. Any provisions in a contract which requires excess fees to be paid is unenforceable regarding the excess charged. A trader who contravenes this requirement commits an offence.
The trader will be liable in damages for any loss or damage suffered by the consumer as a result of the failure to comply with the obligation to reimburse the excess paid. The burden of proof is on the trader, in case of dispute. This provision is without prejudice to the operation of the European Union (Payments Services) Regulations 2018.
Additional Payments
The trader must seek the consumer’s express consent to any additional payment to that agreed before the consumer is bound by a contract or an offer. There is no express consent where consent is inferred from a default option that the consumer is required to reject to avoid the additional payment.
Where the trader receives payment in this instance, he must reimburse the payment. Any provision in a contract which requires payment by the consumer is unenforceable. A trader who contravenes this provision commits an offence. Breach of the obligation to reimburse the consumer will result in the trader being liable in damages for any loss or damage suffered by the consumer. The burden of proof is on the trader, in case of dispute.
Where a telephone line is permitted for contacting the trader about a concluded contract, calls by consumers to that line for that purpose must be charged at no more that the basic rate. Where a trader contravenes the latter, he must reimburse the consumer who paid more than the basic rate, the extent of the excess charged. Any provision of a contract which requires a payment in contravention is unenforceable.
A trader who contravenes this provision commits an offence. Breach of the obligation to reimburse the consumer will result in the trader being liable in damages for any loss or damage suffered by the consumer. The burden of proof is on the trader, in case of dispute. The “basic rate” is defined. The Minister, having consulted as appropriate, may make regulations where he is satisfied that it is necessary in the interests of consumer protection.
Information to be provided: off-premises contract or distance contract
The information to be provided by the trader to the consumer, in the case of an off-premises contract and section 106 in the case of a distance contract, is as follows:
- the main characteristics of the goods, digital content, digital service or service, to the extent appropriate to the medium and to the goods, digital content, digital service or service;
- the identity of the trader, including the trader’s trading name and legal identity;
- if the trader is acting on behalf of another trader, the identity and geographical address of that other trader;
- the geographical address at which the trader is established, the trader’s telephone number and email address, and, where applicable, the details of any other means of online communications provided by the trader which guarantee that the consumer can keep any written correspondence with the trader, including its date and time, on a durable medium;
- the geographical address of—(i) the place of business of the trader, if different from the address provided above, and where the trader acts on behalf of another trader, the place of business of that other trader, if different from the address provided above to which the consumer can address complaints;
- the total price of the goods, digital content, digital service or service inclusive of taxes or, where the nature of the goods, digital content, digital service or service is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
- where applicable, all freight, delivery or postal charges and any other costs additional to the price referred to in clause (f) or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
- in the case of a contract of indeterminate duration or a contract containing a subscription— the total costs per billing period, where such contracts are charged at a fixed rate, the total monthly costs, or where the total costs cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
- where applicable, that the price of the goods, digital content, digital service or service was personalised on the basis of automated decision-making;
- the cost of using the means of distance communication used for the conclusion of the contract, where that cost is calculated other than at a rate referred to;
- the arrangements for payment, delivery, performance, and the time by which the trader undertakes to deliver, provide or supply the goods, digital content, digital service or service;
- where applicable, the trader’s complaint handling policy;
- where a right to cancel the contract exists, the conditions, time limit and procedures for exercising that right in accordance with section 112 ;
- where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation of the contract and, in the case of a distance contract, if the goods by their nature cannot normally be returned by post, the cost of returning the goods;
- where the consumer exercises the right to cancel after having made a request , that the consumer is liable to pay the trader reasonable costs
- where a right to cancel the contract does not apply, the information that the consumer will not benefit from the right to cancel the contract or, where applicable, the circumstances in which the consumer loses that right;
- the existence of a legal obligation on the trader to supply goods, digital content, a digital service or a service that is in conformity with the contract;
- where applicable, the existence and conditions of any after-sales customer assistance, after-sales service or commercial guarantee;
- the existence of relevant codes of practice within the meaning of section 81 (7) and, where applicable, how a copy of such codes may be obtained;
- the duration of the contract or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating it;
- where applicable, the minimum duration of the consumer’s obligations under the contract;
- where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;
- where applicable, the functionality, including applicable technical protection measures, of goods with digital elements, digital content or digital services;
- where applicable, any relevant compatibility and interoperability of goods with digital elements, digital content or digital services of which the trader is aware, or can reasonably be expected to have been aware;
- where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism to which the trader is subject, and the methods of accessing that mechanism.
Contracts for repairs or maintenance
This applies to an off- premises contracts where the consumer explicitly requested the trader to carry out repairs and maintenance; where both perform their obligations immediately and the payment by the consumer under the contract is not more than €200. Before the consumer is bound to the off-premises contract, the trader is required to provide specific information to the consumer and in a specific form unless the consumer expressly agrees otherwise.
All means of communication provided by the trader will enable the consumer to contact the trader quickly and communicate efficiently. The information forms part of the contract and must not be altered without the express agreement of the trader and consumer. A trader who contravenes the requirements commits an offence.