Limiting Rights

Restrictions on Statutory Rights

The Sale of Goods Act limits a business’ ability to exclude liability for the implied statutory terms in relation to the sale of goods and supply of services.  The buyer’s rights may be varied in the case of a non-consumer sale, provided that this is reasonable.

A consumer sale in this context is one where the buyer buys goods of a type ordinarily supplied for private use and consumption, other than in the course of business, from a seller, who makes the sale in the course of business.  There have been different approaches by the courts on the question of whether the buyer deals as a consumer, where he buys goods for his business, which are not of the type in which he deals.

In cases where a consumer buyer enters a contract for hire-purchase and leasing of goods, the credit provider is deemed to be liable for the relevant implied terms and conditions. The seller is also deemed liable, even where the sale contract is between the seller and the finance provider.

The implied rights in relation to title cannot be excluded in any case. The implied rights in relation to quality cannot be excluded where a person deals as a consumer.  They may be excluded where the person has not dealt as a consumer, provided that the exclusion is fair and reasonable. This provision does not apply to an international sales contract.


Purported Restriction of Rights

It is an offence for a person to sell, supply or display goods for sale in the course of a business, which bear a statement or furnish a statement which purports to restrict the purchaser’s rights under Sale of Goods legislation. The offence may be tried summarily or on indictment with imprisonment up to two years and fine up to €12,700.

A business may be required to declare that the consumer’s statutory rights are not prejudiced by statements which set out or describe the buyer’s rights.  [Section 11 (4) 1980]

The implied rights may be excluded in the case of a supply of services, even in consumer cases.  The exclusion must be fair and reasonable.  It must have been specifically brought to the service buyer’s attention.

The Unfair Terms in Consumer Contracts Regulations identify certain clauses which may be potentially unfair, in consumer contracts.  These include clauses which excuse liability for late delivery, permit the seller to deliver a non-compliant quantity and those which excuse liability where a person is unable to perform contracts for reasons beyond his control.  These clauses are intermediate in nature.


Nature and Extent of Seller’s Liability

The merchantability fitness for purpose provisions, do not apply to defects which are drawn to the buyer’s attention before the contract is made. They do apply where the buyer has examined the goods before entering the contract, and the examination ought to have disclosed that defect.

The seller’s liability under the implied warranties and conditions are unconditional.  It is not just a duty to take care that the standard is met.  It is an unconditional obligation for which the seller is liable if there is a breach. A seller or retailer who sells goods in breach of the warranties or conditions may, in turn, have a corresponding claim against the manufacturer or supplier, for breach of the condition.

There is a warranty that where any offer, description or advertisement relating to goods represents that spare parts and after-sale service are available, that they will be available.  This obligation cannot be contracted away or reduced.

The implied warranty applies to an offer, description or advertisement which advertises spare parts and servicing by the seller or manufacturer. The spare parts and adequate service must apply for a reasonable period or the specific period stated in the sale contract.


Exemption Clauses

Generally, it is possible to provide in a contract that the seller’s liability is excluded or limited.  There may, for example, be a time limit for bringing claims, a limit on the amount of compensation, and the grounds of liability.

In the case of business to consumer sales, the implied conditions and terms cannot be contracted away.  An exemption clause is invalid.  A clause limiting liability may be valid.  However, it may be interpreted as an exemption or limitation of the liability of the seller. This is subject to statutory control

In the case of business-to-business sales, exemption clauses are unenforceable unless they are shown to be fair and reasonable. The legislation sets out criteria in relation to what is fair and reasonable.  What is fair and reasonable depends on the circumstances known or which ought reasonably to have been known to or in the contemplation of the parties.


Fair and Reasonable Criteria

Regard is to be had to the following factors where relevant, in determining what is fair and reasonable

  • the relative strength of the parties bargaining positions;
  • alternative means by which the customers’ requirements could be met;
  • whether the customer received an inducement or the opportunity of entering contracts with other parties without a similar term,
  • whether the customer knew or ought to have known of the existence and extent of the term, having regard to custom, trade and previous dealings;
  • whether the term excludes or restricts liability if some conditions are not complied with;
  • whether it was reasonable at the time of the contract to expect that compliance with the condition would be practicable;
  • whether the goods or manufacture process are adapted to the buyer’s special order.

References and Sources

Irish Texts

Brian Doolan, A Casebook on Irish Business Law (1989)

Henry Ellis, Modern Irish Commercial and Consumer Law (2004)

Michael Forde, Commercial Law, 3rd Edition (2005)

Linehan, Irish Business and Commercial Law (1995)

McCormack, Reservation of Title 1990 (1994)

Patrick O’Reilly (ed.), Commercial and Consumer Law  (Statutes) (2000)

Sean Quinn (ed.), Statutes Revised on Commercial Law, 1695-1913 (1994)

Fidelma White, Commercial Law (2003) (2nd Ed 2012)

Fidelma White, Commercial and Economic Law In Ireland (2011)

Vincent Grogan, Thelma King and Edward J. Donelan, Sale of Goods and Supply of Services: A Guide to the Legislation (Law Society of Ireland, 1983)

Paul Anthony McDermott, Contract Law (Butterworths, Dublin, 2001)

2011 Report of the Sales Law Review Group,

UK texts

Atiyah and Adam’s Sale of Goods 13th Ed (2016)

Bridge, Benjamin’s Sale of Goods 9th Ed (2015);

Bridge, The Sale of Goods 3rd Ed (2014)

Blackstones’ Statutes Commercial and Consumer Law 2017

Goode on Commercial Law 5th Ed 2017

Legislation

Sale of Goods Act 1893

Sale of Goods and Supply of Services Act 1980

Electronic Commerce Act 2000

Criminal Justice (Theft and Fraud Offences) Act 2001 (50/2001)

International Carriage of Goods by Road Act 1990 (13/1990)

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

European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003 (S.I. No. 11 of 2003)


 

Sale of Goods and Supply of Services Act

Relationship between Regulations and consumer protection enactments.

3. (1) Subject to paragraphs (3) and (4), these Regulations are in addition to, and not in substitution for, any other enactment relating to the sale of goods or the terms of contracts concluded with consumers, and in particular —

(a) the Sale of Goods and Supply of Services Acts 1893 and 1980,

and

(b) the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. No. 27 of 1995).

(2) In particular, Regulation 4 is in addition to, and not in substitution for, a provision of any other enactment that provides that a consumer shall not be deprived, by virtue of a choice of the kind mentioned in that Regulation, of the protection afforded by any enactment.

(3) In a case where the level of protection for the consumer afforded by a particular provision of these Regulations is greater than that afforded by a particular provision of another enactment, or to the extent that the invocation of a latter such provision by the consumer would diminish the first-mentioned level of protection for him or her —

(a) the consumer may opt to invoke the particular provision of these Regulations to the exclusion of the other provision, and

(b) the other provision may be invoked, and shall be construed and operate so as to be capable of being invoked, by the consumer in a manner that does not diminish the first-mentioned level of protection for him or her,

but nothing in this paragraph operates to extend the application of these Regulations to a person who is not a consumer within the meaning of these Regulations or to goods that are not consumer goods within the meaning of these Regulations.

(4) In a case where the level of protection for the consumer afforded by a particular provision of any other enactment is greater than that afforded by a particular provision of these Regulations, or to the extent that the invocation of a latter such provision by the consumer would diminish the first-mentioned level of protection for him or her —

(a) the consumer may opt to invoke the particular provision of that other enactment to the exclusion of the other provision of these Regulations, and

(b) that other provision of these Regulations may be invoked, and shall be construed and operate so as to be capable of being invoked, by the consumer in a manner that does not diminish the first-mentioned level of protection for him or her,

but nothing in this paragraph operates to afford to any person the protection of that provision of the other enactment in any case where it would not otherwise be so afforded.

C2

Application of Act restricted (1.05.1991) by International Carriage of Goods by Road Act 1990 (13/1990), s. 3(3), S.I. No. 22 of 1991 (commenced in relation to carriage other than carriage between the State and the United Kingdom of Great Britain and Northern Ireland).

Application of certain enactments in relation to CMR.

3.— …

(3) The Carriers Act, 1830, section 7 of the Railway and Canal Traffic Act, 1854, the Sale of Goods Act, 1893, and the Sale of Goods and Supply of Services Act, 1980, shall not apply in relation to contracts for the carriage of goods if the carriage is carriage in relation to which CMR applies.

C3

Enforcement of Act affected (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 55, as substituted (25.01.1988) by Restrictive Practices (Amendment) Act 1987 (31/1987) s. 32, S.I. No. 2 of 1988.

Functions of Director of Consumer Affairs.

55.—(1) The Director of Consumer Affairs and Fair Trade shall have the following additional functions—

(a) to keep under general review practices or proposed practices in relation to any of the obligations imposed on persons by any provision of this Act or the Act of 1893,

(b) to carry out examinations of any such practices or proposed practices where the Director considers that, in the public interest, such examinations are proper or the Minister so requests,

(c) to request persons engaging in or proposing to engage in such practices as are, or are likely to be, contrary to the obligations imposed on them by any provision of this Act or the Act of 1893 to discontinue or refrain from such practices,

(d) to institute proceedings in the High Court for orders requiring persons engaging or proposing to engage in any practices as are, or are likely to be, contrary to the obligations imposed on them by any provision of this Act or the Act of 1893, to discontinue or refrain from such practices.

(2) The Minister may by order confer on the Director of Consumer Affairs and Fair Trade such further functions as he considers appropriate for the purposes of this Act.

C4

Act included in collective citation and construction (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 9, commenced as per s. 1(2).

Citation and construction of Part II.

9.—(1) The Act of 1893 and this Part may be cited together as the Sale of Goods Acts, 1893 and 1980.

(2) The Act of 1893 and this Part shall be construed as one.

Acts included or previously included in the collective citation and construction:

• Sale of Goods and Supply of Services Act 1980 (16/1980), Part II, (31.12.1980) by s. 9, commenced on enactment.

• Sale of Goods Act 1893 (56 & 57 Vict. c. 71) (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 9, commenced on enactment.

C5

Term “dealing as consumer” defined (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 3, commenced as per s. 1(2).


Dealing as consumer.

3.—(1) In the Act of 1893 and this Act, a party to a contract is said to deal as consumer in relation to another party if—

(a) he neither makes the contract in the course of a business nor holds himself out as doing so, and

(b) the other party does make the contract in the course of a business, and

(c) the goods or services supplied under or in pursuance of the contract are of a type ordinarily supplied for private use or consumption.

(2) On—

(a) a sale by competitive tender, or

(b) a sale by auction—

(i) of goods of a type, or

(ii) by or on behalf of a person of a class

defined by the Minister by order,

the buyer is not in any circumstances to be regarded as dealing as consumer.

(3) Subject to this, it is for those claiming that a party does not deal as consumer to show that he does not.

C6

Application of Act extended (9.07.1980) by Trading Stamps Act 1980 (23/1980), s. 8, commenced on enactment.


Application of Sale of Goods Act and Sale of Goods and Supply of Services Act

8.—(1) For the purposes of the Sale of Goods Act, 1893, and the Sale of Goods and Supply of Services Act, 1980, the publication by a company which is the promoter of a trading stamp scheme of a catalogue shall be regarded as an offer, and the tender within the prescribed period of validity of the appropriate number of stamps shall be regarded as an acceptance, in the same way as if the offer and the acceptance were for a monetary consideration.

(2) The provisions of the Sale of Goods Act, 1893, and of the Sale of Goods and Supply of Services Act, 1980, shall apply in every case where the promoter of a trading stamp scheme offers goods or services in exchange for trading stamps.

(3) Where a person other than a promoter of a trading stamp scheme offers goods or services in exchange for trading stamps, the provisions of the Sale of Goods Act, 1893, and of the Sale of Goods and Supply of Services Act, 1980, shall apply in the same way as if that exchange were for a monetary consideration.

PART I

Preliminary and General

Short title.

1.— (1) This Act may be cited as the Sale of Goods and Supply of Services Act, 1980.

(2) This Act shall come into operation six months after the date of its passing.


Interpretation generally.

2.— (1) In this Act—

“ Act of 1893” means the Sale of Goods Act, 1893;

“ business” includes profession and the activities of any State authority or local authority;

F1 [ ‘ consumer-hire agreement ’ has the meaning assigned to it by section 2 (1) of the Consumer Credit Act, 1995; ]

“ deals as consumer” shall be construed in accordance with section 3;

“ fair and reasonable” shall be construed in accordance with subsection (3);

F2 [ ‘ hire-purchase agreement ’ has the meaning assigned to it by section 2 (1) of the Consumer Credit Act, 1995; ]

“ the Minister” means the Minister for Industry, Commerce and Tourism;

“ service” does not include meteorological or aviation services provided by the Minister for Transport or anything done under a contract of service;

“ State authority” means a Minister of the Government, the Commissioners of Public Works in Ireland and the Irish Land Commission.

(2) A reference in this Act to the supply of a service includes reference to the rendering or provision of a service or facility and to an offer to supply.

(3) Where, under section 13 , 31 , 40 or 46 of this Act or under section 55 of the Act of 1893 (inserted by section 22 of this Act), a question arises as to whether a term, agreement or provision is fair and reasonable regard shall be had to the criteria set out in the Schedule in deciding it.

Annotations:

Amendments:

F1

Inserted (13.05.1996) by Consumer Credit Act 1995 (24/1995), ss. 1 (2), 152 (a), S.I. No. 121 of 1996.

F2

Substituted (13.05.1996) by Consumer Credit Act 1995 (24/1995), ss. 1 (2), 152 (b), S.I. No. 121 of 1996.


Dealing as consumer.

3.— (1) In the Act of 1893 and this Act, a party to a contract is said to deal as consumer in relation to another party if—

( a) he neither makes the contract in the course of a business nor holds himself out as doing so, and

( b) the other party does make the contract in the course of a business, and

( c) the goods or services supplied under or in pursuance of the contract are of a type ordinarily supplied for private use or consumption.

(2) On—

( a) a sale by competitive tender, or

( b) a sale by auction—

(i) of goods of a type, or

(ii) by or on behalf of a person of a class

defined by the Minister by order,

the buyer is not in any circumstances to be regarded as dealing as consumer.

(3) Subject to this, it is for those claiming that a party does not deal as consumer to show that he does not.

Saving.

4.— (1) Subject to section 46 (which provides for certain agreements whether made before or after the commencement of this Act) this Act does not apply to contracts made before such commencement.

(2) This Act does not affect any exemption from liability conferred by or under statute.

Orders.

5.— (1) The Minister may by order amend or revoke an order under this Act including an order made by virtue of this subsection.

F3 [ (2) Every order made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the order is passed by either House, within the next twenty-one days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder. ]

Annotations:

Amendments:

F3

Substituted (25.01.1988) by Restrictive Practices (Amendment) Act 1987 (31/1987), s. 33(2), S.I. No. 2 of 1988.


Penalties.

6.— (1) A person guilty of an offence under this Act shall be liable—

( a) on summary conviction, to a fine not exceeding F4 [ € 3,000 ] or, at the discretion of the court, to imprisonment for a term not exceeding 6 months or to both the fine and the imprisonment, or

( b) on conviction on indictment, to a fine not exceeding F4 [ € 60,000 ] or, at the discretion of the court, to imprisonment for a term not exceeding 2 years or to both the fine and the imprisonment.

F5 [ (2) If an offence under this Act is committed by a body corporate and is proved to have been committed with the consent, connivance or approval of, or to have been attributable to any neglect on the part of any person being a director, manager, secretary or any other officer of the body corporate or a person purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if that person were guilty of the first-mentioned offence.

(3) If, in a prosecution for an offence against the person referred to in subsection (2) , it is proved that, at the material time, the person was a director of the body corporate or an employee of it whose duties included making decisions that, to a significant extent, could have affected the management of the body corporate, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is shown, that the person consented to the doing of the acts or defaults that constitute the offence.

(4) Subsection (3) shall be read as placing on the person referred to in that subsection an evidential burden only with respect to the matter or matters concerned.

(5) If the affairs of a body corporate are managed by its members, subsections (2) and (3) apply in relation to the acts or defaults of a member in connection with the member ’ s functions of management as if that member were a director or manager of the body corporate. ]

Annotations:

Amendments:

F4

Substituted (30.06.2005) by Investment Funds, Companies and Miscellaneous Provisions Act 2005 (12/2005), s. 81, S.I. No. 323 of 2005.

F5

Substituted (1.05.2007) by Consumer Protection Act 2007 (19/2007), s. 95, S.I. No. 178 of 2007.

Prosecution of offences.

7.— (1) Summary proceedings for an offence under this Act may be brought and prosecuted by the Minister or by the Director of Consumer Affairs.

(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within 18 months from the date of the offence.


Statements purporting to restrict rights of buyer.

11.— (1) Subsections (2) and (3) apply to any statement likely to be taken as indicating that a right or the exercise of a right conferred by, or a liability arising by virtue of, section 12, 13, 14 or 15 of the Act of 1893 is restricted or excluded otherwise than under section 55 of that Act.

(2) It shall be an offence for a person in the course of a business to do any of the following things in relation to a statement to which subsection (1) refers:

( a) to display on any part of any premises a notice that includes any such statement, or

( b) to publish or cause to be published an advertisement which contains any such statement, or

( c) to supply goods bearing, or goods in a container bearing, any such statement, or

( d) otherwise to furnish or to cause to be furnished a document including any such statement.

(3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, shall be treated as a statement to which subsection (1) refers unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the buyer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (1).

(4) It shall be an offence for a person in the course of a business to furnish to a buyer goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on a buyer or liabilities to the buyer in relation to goods acquired by him or any statement likely to be taken as such a statement, unless that statement is accompanied by a clear and conspicuous declaration that the contractual rights which the buyer enjoys by virtue of sections 12, 13, 14 and 15 of the Act of 1893 are in no way prejudiced by the relevant statement.


Exclusion of implied terms and conditions.

55.— (1) Subject to the subsequent provisions of this section, where any right, duty or liability would arise under a contract of sale of goods by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by usage if the usage is such as to bind both parties to the contract.

(2) An express condition or warranty does not negative a condition or warranty implied by this Act unless inconsistent therewith.

(3) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 12 of this Act shall be void.

(4) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 13, 14 or 15 of this Act shall be void where the buyer deals as consumer and shall, in any other case, not be enforceable unless it is shown that it is fair and reasonable.

(5) Subsection (4) shall not prevent the court from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any of the provisions of section 13, 14 or 15 of this Act is not a term of the contract.

(6) Any reference in this section to a term exempting from all or any of the provisions of any section of this Act is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of all or any of the provisions of that section, or the exercise of a right conferred by any provision of that section, or any liability of the seller for breach of a condition or warranty implied by any provision of that section.

(7) Any reference in this section to a term of a contract includes a reference to a term which although not contained in a contract is incorporated in the contract by another term of the contract.

(8) This section is subject to section 61 (6) of this Act.


Sale of Goods Act, 1893, section 55A.

23.— After section 55 of the Act of 1893 there shall be inserted the section set out in the following Table:


PART V

Misrepresentation

“Contract”.

43.— In this Part “ contract” means a contract of sale of goods, a hire-purchase agreement, an agreement for the letting of goods to which section 38 applies or a contract for the supply of a service.


Removal of certain bars to rescission for innocent misrepresentation.

44.— Where a person has entered into a contract after a misrepresentation has been made to him, and

( a) the misrepresentation has become a term of the contract, or

( b) the contract has been performed,

or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to the provisions of this Part notwithstanding the matters mentioned in paragraphs (a) and (b).


Damages for misrepresentation.

45.— (1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true.

(2) Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed in any proceedings arising out of the contract that the contract ought to be or has been rescinded, the court may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party.

(3) Damages may be awarded against a person under subsection (2) whether or not he is liable to damages under subsection (1), but where he is so liable any award under subsection (2) shall be taken into account in assessing his liability under subsection (1).


Avoidance of certain provisions excluding liability for misrepresentation.

46.— (1) If any agreement (whether made before or after the commencement of this Act) contains a provision which would exclude or restrict—

( a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made, or

( b) any remedy available to another party to the contract by reason of such a misrepresentation,

that provision shall not be enforceable unless it is shown that it is fair and reasonable.

(2) Subsection (1) shall not affect any right to refer a difference to arbitration.


PART VI

Miscellaneous

Unsolicited goods.

47.— (1) Where—

( a) unsolicited goods are sent to a person with a view to his acquiring them and are received by him, and

( b) the recipient has neither agreed to acquire nor agreed to return them,

and either—

(i) during the period of six months following the date of receipt of the goods the sender did not take possession of them and the recipient did not unreasonably refuse to permit the sender to do so, or

(ii) not less than 30 days before the expiration of that period the recipient gave notice to the sender and during the following 30 days the sender did not take possession of the goods and the recipient did not unreasonably refuse to permit the sender to do so,

then the recipient may treat the goods as if they were an unconditional gift to him and any right of the sender to the goods shall be extinguished.

(2) The notice referred to in subsection (1) shall be in writing and shall state—

( a) the recipient’s name and address and the address at which the sender may take possession of the goods (if not the same) and

( b) that the goods are unsolicited.

(3) A person who, not having reasonable cause to believe there is a right to payment, in the course of any business, makes a demand for payment, or asserts a present or prospective right to payment for what he knows are unsolicited goods sent to another person with a view to his acquiring them, shall be guilty of an offence.

(4) A person who, not having reasonable cause to believe there is a right to payment in the course of any business and with a view to obtaining any payment for what he knows or ought to know are unsolicited goods—

( a) threatens to bring any legal proceedings,

( b) places or causes to be placed the name of any person on a list of defaulters or debtors or threatens to do so, or

( c) invokes or causes to be invoked any other collection procedure or threatens to do so,

shall be guilty of an offence.

(5) In this section—

“ acquire” includes hire,

“ send” includes deliver,

“ sender” includes any person on whose behalf or with whose consent the goods are sent and any other person claiming through or under the sender or any such person,

“ unsolicited” means, in relation to goods sent to any person, that they are sent without any prior request by him or on his behalf.

F21 [ (6) Where unsolicited goods are supplied, or unsolicited services are provided, by a trader to a consumer —

( a ) subsections (1) to (5) do not apply, and

( b ) subsections (7) to (10) apply.

(7) The consumer is exempted from any requirement to provide consideration for unsolicited goods or services supplied by the trader.

(8) The absence of a response from the consumer following the supply of unsolicited goods or the provision of unsolicited services does not constitute consent to —

( a ) the provision of consideration for the goods or services, or

( b ) the return or safekeeping of the goods.

(9) In the case of an unsolicited supply of goods, the consumer may treat the goods as if they were an unconditional gift.

(10) The following definitions apply for the purposes of subsections (6) to (9) :

consumer means a natural person who is acting for purposes which are outside the person ’ s trade, business, craft or profession;

services includes, without limitation —

( a ) digital content not supplied on a tangible medium,

( b ) water, gas, and electricity not put up for sale in a fixed volume or set quantity, and

( c ) district heating;

trader means —

( a ) a natural person, or

( b ) a legal person, whether —

(i) privately owned,

(ii) publicly owned, or

(iii) partly privately owned and partly publicly owned,

who is acting for purposes related to the person ’ s trade, business, craft or profession, and includes any person acting in the name, or on behalf, of the trader;

unsolicited, in relation to goods supplied or services provided to a consumer, means that they are supplied or provided without any request by or on behalf of the consumer. ]

Annotations:

Amendments:

F21

Inserted (13.06.2014) by European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013), reg. 32.

Editorial Notes:

E10

The European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communications) Regulations 2001 (S.I. No. 207 of 2001), reg. 11 (as qualified by reg. 9(5)), contains provisions based on subss. (3) and (4) and uses the same definitions of “service” and “unsolicited”.


Required particulars in contracts, guarantees and related writings.

51.— (1) The Minister may, by order, following such consultation as he considers necessary, require that a seller of a specified class of goods or a supplier of a specified class of service shall include such particulars as are specified in the order in any specified class of contract or in any guarantee, notice or other writing in relation to such contract.

(2) A person who contravenes an order under subsection (1) shall be guilty of an offence.


Notices as to use of standard form of contract.

52.— (1) The Minister may by order require, in relation to any person acting in the course of a business carried on by him who makes use of a standard form of contract (being a contract for the sale of goods, a hire-purchase agreement, an agreement for the letting of goods or a contract for the supply of a service), that he shall give such notice to the public as the order may specify as to his use of such standard form and as to whether he is or is not willing to contract on any other terms.

(2) A person who contravenes an order under subsection (1) shall be guilty of an offence.


Size of type in printed contracts and other documents.

53.— (1) The Minister may by order prohibit, in relation to goods or services generally or in relation to any specified class of goods or services, any seller of such goods or supplier of such services in the course of a business from making use of any printed contract, guarantee or other specified class of document unless it is printed in type of at least such size as the order prescribes.

(2) In subsection (1) references to printing include type-writing, lithography, photography and other modes of representing or reproducing words in visible form.

(3) A person who contravenes an order under subsection (1) shall be guilty of an offence.


Contracts required to be in writing.

54.— The Minister may by order provide, in relation to goods or services of a class described in the order, that a contract (being a contract for the sale of goods, an agreement for the letting of goods, otherwise than under a hire-purchase agreement F24 [ or a consumer-hire agreement ] , or a contract for the supply of a service) shall, where the buyer, hirer or recipient of the service deals as consumer, be in writing and any contract of such class which is not in writing shall not be enforceable against the buyer or hirer or the recipient of the service.

Annotations:

Amendments:

F24

Inserted (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 152(c), S.I. No. 121 of 1996.

Functions of Director of Consumer Affairs.

F25 [ 55. — (1) The Director of Consumer Affairs and Fair Trade shall have the following additional functions —

( a ) to keep under general review practices or proposed practices in relation to any of the obligations imposed on persons by any provision of this Act or the Act of 1893,

( b ) to carry out examinations of any such practices or proposed practices where the Director considers that, in the public interest, such examinations are proper or the Minister so requests,

( c ) to request persons engaging in or proposing to engage in such practices as are, or are likely to be, contrary to the obligations imposed on them by any provision of this Act or the Act of 1893 to discontinue or refrain from such practices,

( d ) to institute proceedings in the High Court for orders requiring persons engaging or proposing to engage in any practices as are, or are likely to be, contrary to the obligations imposed on them by any provision of this Act or the Act of 1893, to discontinue or refrain from such practices.

(2) The Minister may by order confer on the Director of Consumer Affairs and Fair Trade such further functions as he considers appropriate for the purposes of this Act. ]

Annotations:

Amendments:

F25

Substituted (25.01.1988) by Restrictive Practices (Amendment) Act 1987 (31/1987), s. 32, S.I. No. 2 of 1988.

Editorial Notes:

E11

The Consumer Protection Act 2007 (19/2007), s. 37(3), establishing the National Consumer Agency on 1 May 2007 by S.I. No. 179 of 2007, provides that references to the Director and the office of the Director contained in any Act or instrument relating to any functions transferred by subsection (2) of the same section shall, on and after the establishment day, be read as references to the National Consumer Agency. Note also the statement of the functions of the Agency in s. 8 of the 2007 Act.

Consultation with Minister for Finance.

56.— The Minister shall not make an order under section 51, 52, 53, 54 or 55, except after consultation with the Minister for Finance, where the order would affect the business authorised by a licence to carry on banking business for the time being in force under section 9 of the Central Bank Act, 1971, or any business exempted by section 7 (4) of that Act.

Annotations:

Modifications (not altering text):

C18

References to the holder of a licence under section 9 of the Central Bank Act 1971 (24/1971) construed (31.03.2014) by European Union (Capital Requirements) Regulations 2014 (S.I. No. 158 of 2014), reg. 152.

152. Notwithstanding Regulation 7(1), the references, however expressed, to the holder of a licence under section 9 of the Act of 1971, in—

Construction of licence holder in enactments

( a) sections 19 to 26, section 28, sections 31 to 42 or section 58 of the Act of 1971,

( b) section 27, sections 49 to 51, sections 90, 108, 117, 134 or 140 of the Central Bank Act 1989 (No. 16 of 1989), or

( c) any other enactment which was in force on 1 January 1993,

shall be construed so as to include any person who, but for the application of Regulation 7(1), was or would have been required to hold a licence under section 9 of the Act of 1971.

Construction of sections 9 and 18 of the Consumer Information Act, 1978.

57.— Sections 9 (6) ( h) and 18 of the Consumer Information Act, 1978 (which relate to the prosecution of offences by the Minister, a local authority or the Director of Consumer Affairs) shall be construed as referring to summary proceedings only.

Annotations:

Editorial Notes:

E12

Consumer Information Act 1978 (1/1978) was repealed (1.05.2007) by Consumer Protection Act 2007 (19/2007), s. 4 and sch. 2, S.I. No. 178 of 2007. This provision would appear to be spent.


SCHEDULE

Fair and Reasonable Terms

Section 2 (3).

1. In determining for the purposes of section 13, 31, 40 or 46 of this Act or section 55 of the Act of 1893 (inserted by section 22 of this Act) if a term is fair and reasonable the test is that it shall be a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in contemplation of the parties when the contract was made.

2. Regard is to be had in particular to any of the following which appear to be relevant:

( a) The strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;

( b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;

( c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);

( d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;

( e) whether any goods involved were manufactured, processed or adapted to the special order of the customer.

3. In this Schedule—

“ contract” includes “ agreement”,

“ term” includes “ agreement” and “ provision”.