Off-Premises Contracts
Scope
The off-premises consumer contract provisions do not apply to off-premises contracts where the consumer pays no more than €50. Where two or more off-premises contracts with related subjects are concluded at the same time, the total payment to be made by the consumer will be taken into account.
Any purported waiver of rights by a consumer conferred by the off-premises contract provisions has no effect and any term in a contract which purports to waive or restrict a right conferred by this Part is not binding on the consumer.
The burden of proof is on the trader to show compliance with the information requirements with the off-premises contract provisions.
Information requirements
The 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 off-premises 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. The information or the cancellation form must be completed by meeting specific criteria.
All means of communication provided by the trader is to assist the consumer to contact and communicate with the trader efficiently. 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 obligations commits an offence. This provision does not apply to an off-premises contract to which the below provisions (repair and maintenance) apply.
Information to be provided: off-premises contract or distance contract
The information to be provided by the trader to the consumer in accordance with section 103 or, as the case may be, section 104 (3)(a), 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.
Provision of copy or confirmation of off-premises contract
A trader must provide a copy of the signed contract or confirmation of same to the consumer prior to or on conclusion of an off-premises contract in a specified form. The contract for the supply of digital content, not supplied on a tangible medium, and where performance began with the consumer’s prior consent, must contain the consumer’s acceptance of the loss of the right to cancel. A trader who contravenes any of the requirement commits an offence.