Written Terms

Consumer Sales

There are a number of instances where modern consumer protection legislation, requires that the contract be in writing and set out certain content. A signature may or may not be required.

Consumer contracts negotiated away from the trader’s business premises and contracts concluded by distance communication such as internet sales are subject to specific detailed requirements. Certain information must be delivered to the customer in a permanent/printable form prior to the contract.

The trader must set out the terms of the contract including certain prescribed terms. There are requirements to furnish a copy of the contract terms in a permanent form, such as in writing or permanent document format file. The failure to do so makes the contract unenforceable.

The consumer has the right to terminate the consumer contract in most cases in the above categories, during the cooling off period, which is usually 7 to 10 days. The cooling off period does not commence until the above requirements have been fulfilled.

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Distance and Off-Premises Consumer Contracts

The Electronic Commerce Act confirms that that contracts may be formed over the internet and by other electronic means. Modern EU derived consumer legislation makes extensive mandatory requirements in relation to what traders who deal with a consumer must provide in concluding a transaction.

Distance Selling (which is wider than internet sales) legislation requires extensive information to be provided pre-contract and confirmed post contract, in a durable form, commonly a pdf which can be saved. There are broadly similar requirements in relation to doorsteps contracts, and distance financial services.

A trader who concludes an off-premises contract with a consumer shall provide the consumer with a copy of the signed contract or with confirmation of the contract.The copy or confirmation of the contract shall be provided on paper or, if the consumer agrees, on another durable medium.

Where applicable, the copy or the confirmation of the contract provided by the trader shall include the confirmation of the consumer’s acknowledgement of the loss of the right to cancel the contract in the case of digital content not supplied on a tangible medium where the performance has begun with the consumer’s prior express consent.

A trader who contravenes a provision of this Regulation commits an offence.

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Required Information Distance & Off-Premises Sales

The EU derived 2013 consumer protection regulations extend the written information disclosure requirements for distance and off-premises sales.  The trader must provide the specified information both pre-contract and post contract. Before a consumer is bound by an off-premises contract or offer, the trader must provide the specified information. Where there is a right to cancel the contract, the model form of cancellation certificate must be provided.

The required information is as follows:

• the main characteristics of the goods or services to the extent appropriate to the medium and to the goods or services concerned;
• the identity of the trader, including the trader’s trading name;
• if the trader is acting on behalf of another, the geographical address and identity of that trader;
• the geographical address at which the trader is established; the telephone number, fax and e-mail address where available, to enable the consumer to contact the trader quickly and communicate efficiently;
• the geographical address of the place of business of the trader to which the consumer may address complaints, if different to the above;
• where the trader acts on behalf of another, the place of business of that other, to which the consumer may address complaints;
• the total price of the goods or services, inclusive of tax
• where the nature of goods 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, additional freight and postal charges and other costs; where those charges cannot reasonably be calculated in advance, the fact that such charges may be made;
• in the case of contracts of indeterminate duration or containing a subscription, the total cost per billing method, where contracts are charged at a fixed rate, the total monthly costs or where the total cost cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
• cost of using the means of distance communication, used for conclusion of the contract, where this is other than at the basic rate;
• arrangements for the payment, delivery, performance and time by which the trader undertakes to deliver the goods or perform the service;
• where applicable, the trader’s complaint handling policy;
• where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with the legislation;
• where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and in the case of distance contracts, 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 in accordance with the regulations, that the consumer is liable to pay the trader’s reasonable cost in accordance with the regulations;
• where the right to cancel the contract does not apply under the regulations, confirmation that the consumer will not benefit from that right or where applicable, the circumstances in which the consumer loses that right;
• in the case of a sales contract, the existence of a legal obligation on the trader to supply goods that are in conformity with the contract;
• where applicable, the existence and conditions of customer assistance, after sale services and commercial guarantees;
• the existence of relevant codes of practice as defined under the Consumer Protection Act and where applicable, how copies of such codes can be obtained;
• the duration of the contract, where applicable 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 conditions of deposit or other financial guarantees to be paid or provided by the consumer at the request of the trader;
• were applicable, the functionality including applicable technical protection measures of digital content;
• where applicable, any relevant interoperability of digital content with hardware and software of which the trader is or can reasonably be expected to be aware;
• where applicable, the possibility of having recourse to a out of court complaint and redress mechanism, to which the trader is subject and the methods for having access to it.

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On Premises Consumer Contracts

An “on premises” contract is a contract, other than a distance contract or an off premises contract. The 2013 EU derived consumer protection regulations now require the provision of consumer information in relation to an “on premises” consumer contracts, as well as for doorstop, internet, and other distance contracts.

Traders must give information to the consumer before the consumer is bound by an on premises contract.  The information must be set out in a clear and comprehensible manner, unless the information is already apparent from the contract.

f the information is apparent from the context, it need not be provided.  It may be available on packaging and signs etc. and this may suffice in many cases. The information obligation does not apply to contracts that involve day to day transactions and that are performed immediately when the contract is made.  This will typically apply to purchases in shops, restaurants and other retail outlets.

Failure by the trader to comply with the obligations is an offence.  The regulatory authority may take civil or other action.

The information to be provided is as follows:

• the main characteristics of the goods or services to the extent appropriate to the medium and to the goods or services
• the identity of the trader, including the trader’s name and legal identity;
• the geographical address at which the trader is established and the trader’s telephone number;
• the total price of the goods or services inclusive of taxes
• where the nature of goods or services is such that the price cannot be reasonably calculated in advance, the manner in which the price is to be calculated;
• where applicable, all freight, delivery or postal charges additional to the price referred to above or where they cannot be reasonably calculated in advance, the fact that charges may be payable;
• where applicable, the arrangements for payment, delivery, performance and the time by which the trader undertakes to deliver the goods or perform the service;
• where applicable, the trader’s complaint handling policy;
• in the case of a sales contract, the existence of a legal obligation on the trader to supply goods that are in conformity with the contract;
• where applicable, the existence and conditions of after sale services and commercial guarantees;
• the duration of the contract where applicable, or if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating it;
• where applicable, the functionality including technical protection measures of digital content;
• where applicable, any relevant interoperability of digital content with hardware or software, of which the trader is or can reasonably be expected to be aware.

The obligations are subject to a number of exceptions.  The requirement to provide information about the existence of a legal obligation on the trader to supply goods in conformity with the contract and other consumer rights, applies to a sales contract only.  Certain of the obligations apply, only where applicable.  For example,  where the relevant such policies do not exist, the statements need not be provided.

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Consumer Finance

Consumer loans, credit agreements, and credit sale agreements must set out certain matters, be signed and be in writing. This requirement also applies to hire purchase and consumer hire agreements.

There are requirements for prescribed warnings notification of rights and a so-called cooling off period. During the cooling off period, the contract may be cancelled. It is usually seven to ten days.

The agreement must contain certain information about the loan including the amount of credit, interest charged, repayment installments, the annual percentage rate of charge (APR) details of charges, the method of determining the total amount payable, the date of expiry of the loan and the cost of termination.

The Consumer Credit Act provides that the failure to comply with the required formalities makes the agreement unenforceable against the consumer unless the court is satisfied that the failure to comply was not deliberate and is not prejudice the consumer, and it would be just and equitable to dispense with the requirements. In this case, the court may permit the agreement to be enforced subject to conditions as it decides.

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Directories

A person shall not be liable for any payment and shall be entitled to recover any payment made by him by way of charge for including or arranging for the inclusion in a directory of an entry relating to that person or his trade or business, unless an order or note complying with this section has been signed by him or on his behalf and, in the case of a note of agreement to the charge, a copy was supplied to him for retention before the note was signed.

An order for an entry in a directory must be made by means of an order form or other stationery belonging to the person to whom, or to whose trade or business, the entry is to relate and bearing in print the name and address (or one or more of the addresses) of that person. The note of a person’s agreement to a charge must state the amount of the charge immediately above the place for signature, and must identify the directory or proposed directory and state certain prescribed matters.

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General Power to Prescribe Writing

There is power under the Sale of Goods Act which has yet been used, for the Department to make regulations, requiring that specified contracts for the sale of goods or the supply of services entered with consumers must be in writing, that print must be of a particular size or that that shall include specified particulars..

The Act provides that 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 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 that 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.

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.

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.

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References and Sources

Irish Textbooks and Casebooks

Clark, R. Contract Law in Ireland 8th Ed. (2016)

Friel, R. The Law of Contract 2nd Ed, (2000)

McDermott, P.  Contract Law (2001) 2nd Ed (2017)

Enright, M. Principles of Irish Contract Law (2007)

Clark and Clarke Contract Cases and Materials 4th Ed (2008)

English Textbooks and Casebooks

Poole, J. Casebook on contract law. (2014) 12th edition

Stone and Devenney, The Modern Law of Contract 10th Ed (2015)

McKendrick, Contract Law 10th Ed (2013)

Chen-Wishart, Contract Law 5th Ed (2015)

Anson, Reynell, Beatson, J., Burrows, Cartwright, Anson’s law of contract. 29th Ed (2010)

Atiyah and Smith, Atiyah’s introduction to the law of contract. 6th Ed.

Chen-Wishart, M. (2015) Contract law. 5th Ed.

Cheshire, Fifoot and Furmstons, Furmstons and Fifoot Cheshire, Fifoot and Furmston’s law of contract. OUP.

Duxbury, Robert (2011) Contract law. 2nd Ed.

Halson, Roger (2012) Contract law. 2nd Ed.

Koffman & Macdonald’s Law of Contract. 8th Ed. (2014)

O’Sullivan, Hilliard, The law of contract. 6^th Ed. (2014)

Peel, and Treitel, The law of contract. 13th Ed. (2011).

Poole, J.Casebook on contract law. 12th Ed. (2014).

Poole, J.  Textbook on contract law. 12th Ed. (2014)

Richards, P Law of contract. 10th Ed. (2011)

Stone, R.  The Modern law of Contract. 10th Ed. (2013)

Treitel, G. H.  An outline of the law of contract. 6th Ed (2014).

Turner, C Unlocking contract law. 4th Ed. (2014).

Upex, R. V., Bennett, G Chuah, J, Davies, F. R. Davies on contract. 10th Ed. (2008).

UK Casebooks

Stone,Devenney, Text, Cases and Materials on Contract Law 3rd Ed (2014)

McKendrick, Contract Law Text, Cases and Materials 6th Ed (2014)

Stone, R, Devenney, J Cunnington, R Text, cases and materials on contract law. 3rd Ed (2014)

Burrows, A. S.  A Casebook on Contract. 4th Ed.

Beale, H. G., Bishop, W. D. and Furmston, M. P. Contract: cases and materials. 5th ed. (2008)

Blackstone’s Statutes on Contract, Tort & Restitution 2017 (Blackstone’s Statute Series)

UK Practitioners Texts

Chitty on Contracts 32nd Edition, 2 Volumes & Supplement (2016)

The above are not necessarily the latest edition.

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