The Distance Selling Regulations were passed to protect consumers when they buy many goods and services over the internet, by telephone or mail or indeed entering into contracts at a distance from the supplier who offers them to you.
The stimulus for giving consumers extra and beneficial protection in such deals is that the consumer does not have the advantage of meeting with the supplier “face-to-face” and inspecting the goods or services offered for sale.
Let’s face it if you go into a building a shop or an office you get a feel for the enterprise you are considering engaging with at a distance causes a consumer a little less knowledge.
The Consumer Protection (Distance Selling) Regulations 2000, the Regulations do not apply to contracts between businesses and is solely for consumers.
It came into force across the UK since 31st October 2000 and they implement a 1997 EU Directive on the protection of consumers in respect of distance contracts.
(Those initial regulations where the subject of amendments, which were adopted and passed in 2005).
The Amendments addressed realistic problems faced by service providers in getting written information to customers.
The Regulations give timeshare consumers a right to (amongst other things):-
Receive clear information about the supplier, the services offered and the sale before deciding to buy;
Confirmation of this information in writing;
A cancellation period of 7 working days (now 14 days) in which to withdraw from the contract.
Protection from payment card fraud.
So when do these Regulations Apply?
The Regulations apply to all distance contracts.
These are contracts: for the sale of goods or the provision of services like consumer instruction/engagement of enterprises which are offering a timeshare service;
They apply when concluded between a timeshare supplier and a consumer (not business to business who are generally considered more savvy)
Under an organised distance sales or service provision scheme run by the supplier (which will cover, for example, sales made through a call centre or from a website; one-off contracts concluded by email are not caught by the Regulations);
Where the timeshare supplier communicates with the consumer, without ever coming face-to-face with them when concluding the contract (i.e. by ‘distance communication’).
Distance communication would include: web pages; unaddressed or addressed printed matter (this could include leaflets dropped through letter boxes); letters; press advertising with order forms;
Catalogues; telephone with or without human intervention; email; fax; and teleshopping.
In respect to timeshare issue and services nothing is exempt from distance contracts
Part-Exempt Distance Contracts
Some contracts for the provision of overnight accommodation transport, catering or leisure services are exempt, where the timeshare supplier undertakes, when the contract is concluded, to provide these services on a specific date or within a specific period.
The Exemption for all of these part-exempt contracts is in respect of the provisions relating to:
Information given to the consumer prior to the conclusion of the contract;
Recovery of money paid by the consumer;
Return of goods by the consumer after cancellation;
Goods given in part exchange; and
Mandatory performance of the contract within 30 days.
What are the Requirements of the Regulations?
The Regulations require a timeshare supplier to:
Give consumers certain information prior to conclusion of the contract.
Give consumers confirmation of the prior information in writing or in another durable medium which is available and accessible to the consumer (Email is an acceptable medium for this however displaying the information on a web pages not);
Give consumers certain additional information (e.g. in respect of cancellation rights);
Refund consumers within a certain time period;
Perform the contract within a certain time period.
The term “in writing” is used as convenient shorthand and in this article “in writing” should be read as including “or in another durable medium which is available and accessible to the timeshare consumer”.
A distance contract will not be enforceable against a consumer unless the supplier has provided to the consumer in good time prior to the conclusion of the contract the following information:
The identity of the supplier and, where the contract requires payment in advance, the supplier’s address;
A description of the main characteristics of the goods or services;
The price of the goods or services including all taxes;
Delivery costs, where appropriate;
The arrangements for payment, delivery or performance (e.g. when the customer can expect delivery of the goods or performance of the services);
The existence of a right to cancel; the agreement/ contract
If the consumer is to use a premium rate phone number, the cost of the call must be specified before charges are incurred for the telephone call;
The Period for which the offer or the price Remains Valid;
Where appropriate, the minimum duration of the contract, in the case of a contract to supply goods or services permanently (e.g. in a contract for a mobile phone or for cable TV services), or recurrently (e.g. in a contract with a monthly book club);
Whether or not substitute goods or services may be provided in the event of those ordered by the customer being unavailable; and
Notification that the supplier will meet the costs of the consumer of returning any such substitute goods he or she does not want.
This prior information must be provided in a clear and comprehensible manner which is appropriate to the means of distance communication used.
For example, if the customer has contacted the supplier by email or mail shot, it may be reasonable for the supplier to provide the prior information by email.
If a business ‘cold calls’ consumers by phone, there are special rules regarding any distance contract concluded during the course of the conversation.
The contract will not be enforceable unless, at the beginning of the conversation, the supplier has made its identity and the commercial purpose of the telephone call explicitly clear.
In the case of a dispute about cold calling contracts, the supplier must prove that the information was provided in accordance with the Regulations.
However, this requirement should not cause too many difficulties as it can be built into a tele-script quite easily and, in any case, most suppliers operating over the phone would have to provide such information in order to comply with data protection legislation.
Note it would be helpful for a tele-sales caller to publish their script for protection and in the event of a dispute
Written Confirmation and Additional Information
Suppliers must provide the consumer with confirmation of the prior information otherwise they will not be able to enforce the distance contract. This confirmation must be in writing, e.g. by email.
The supplier is required to confirm most of the prior information in writing and provide certain additional information.
The following must be given: most of the prior information, namely:
the identity of the supplier and, where the contract requires payment in advance, the supplier’s address; a description of the main characteristics of the goods or services; the price of the goods or services including all taxes; delivery costs, where appropriate; the arrangements for payment, delivery or performance; the existence of a right to cancel; the conditions and procedures to enable the consumer to cancel the contract; whether the consumer must return the goods to the supplier if the consumer cancels; whether the consumer or the supplier is responsible for the cost of returning the goods to the supplier if the consumer cancels; in the case of contracts for the supply of services, information on the consequences of agreeing to performance of a service starting before the end of the usual 7 working day cancellation period the geographical address of the place of business of the supplier to which the consumer may address any complaints; information on any after-sales services and guarantees; and the conditions for cancelling the contract, where it is of an unspecified duration or a duration exceeding one year.
This information must be given to the consumer either: prior to the conclusion of the contract, or afterwards, provided it is done: in good time; in contracts for services, during the performance of the contract; and in contracts for goods, at the latest at the time of delivery of the goods where goods not for delivery to third parties are concerned. This means that where consumer A orders goods to be despatched to consumer B (e.g. as a gift), the information must be given to consumer A prior to the conclusion of the contract.
An online supplier may choose to include this information in an acknowledgement email that it sends to the consumer when an order is placed. Others will include this information in their terms and conditions and send a copy of these terms to the consumer when an order is placed.
The supplier in a contract for the supply of services shall not be subject to the obligations to provide written confirmation and additional information where those services are supplied on only one occasion and are invoiced by the operator of the means of distance communication.
However, the supplier must take all necessary steps to ensure that the consumer in such a one-off contract is able to obtain the supplier’s geographical address and the place of business to which the consumer may address any complaints.
Right to Cancel
Under the Regulations a consumer can cancel a distance contract at any time during the “cancellation period” by notifying this intention to the supplier in writing. At times this is also referred to as the “cooling-off period”.
A contract which is cancelled must be treated as if it had never been entered into by the consumer. For example, if the consumer has entered into a credit agreement in order to purchase the goods, that agreement must also be cancelled at the same time as the distance contract.
In both contracts for the sale of goods and contracts for the supply of services the cancellation period begins on conclusion of the contract. However, the duration of the cancellation period varies depending on the stage at which the written confirmation and additional information is provided. The earlier the information is provided, the shorter the cancellation period will be. The following is an outline of the various cancellation periods that may arise:
The UK’s Distance Selling Regulations (Timeshare Exit Enterprises) Part 3.
Cancellation Periods for Goods
Where written confirmation and additional information is provided before or at the time of delivery of the goods, the cancellation period is 7 working days beginning with the day after the day on which the goods are delivered;
where the written confirmation and additional information is provided after the goods are delivered but within a period of three months beginning with the day after the day on which the goods are delivered, the cancellation period will end after 7 working days beginning with the day after the day on which the written confirmation and additional information is provided;
Example: the written confirmation and additional information is provided to a new customer three weeks after he placed an order. The cancellation period will be 7 working days from the day after the date the written confirmation was provided.
Where the obligation to give written confirmation and additional information is not fulfilled within three months beginning with the day after the day on which the goods are delivered, the cancellation period ends after three months and 7 working days from the day after the day on which the goods are delivered.
Cancellation Period for Services
Where the written confirmation and additional information are provided on or before the day on which the contract is concluded, the cancellation period ends on the expiry of 7 working days beginning with the day after the day on which the contract is concluded;
Where the written confirmation and additional information are provided after the contract for services is concluded but within a period of three months beginning with the day after the day on which the contract is concluded, the cancellation period will end after 7 working days beginning with the day after the day on which the written confirmation and additional information is provided;
Where the supplier has the consumer’s consent to begin performance of the services before the usual 7 working day cancellation period expires, beginning with the day after the day on which the contract was concluded, and the supplier has not provided the written confirmation and additional information on or before the day when performance began, but does so in good time during the performance of the contract, the cancellation period ends: on the expiry of 7 working days beginning with the day after the day on which the consumer receives the information; or if the performance of the contract is completed before the expiry of that 7 working day period, on the day when the performance of the contract is completed.
Where the obligation to give written confirmation and additional information is not fulfilled within three months beginning with the day after the day on which the contract for services is concluded, the cancellation period is the period of three months and 7 working days from the day after the day on which the contract is concluded, regardless of whether performance of the services has begun or has been completed.
The rules on the right to cancel and the information requirements were changed in 2005. Before the change a supplier was required to get written information about cancellation rights to a consumer before the conclusion of a contract for services. That proved difficult for suppliers who took orders by phone for services due to begin the same day, e.g. for the hire of equipment. It exposed them to a risk that a consumer would cancel and demand a refund.
So the Regulations changed to provide that a supplier no longer needs to inform the consumer in writing before the contract is made that he will not be able to cancel the contract once the supply of services has begun.
It is open for suppliers of goods and services to offer longer cancellation periods under their own contract terms, provided they do not mislead consumers about the rights they have under the Regulations or other legislation, such as the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982.
Exceptions to the right to cancel
Unless the parties have agreed otherwise, the consumer will not have the right to cancel in respect of certain distance contracts. This applies to the following contracts: for the provision of services, if the performance of the contract has begun with the consumer’s consent before the end of the cancellation period and the supplier has provided the written confirmation and additional information (including information that the cancellation rights will end as soon as performance of the contract begins); for the supply of goods or services which are priced according to fluctuations in the financial market and cannot be controlled by the supplier; for the supply of goods which by means of their nature cannot be returned (e.g. personalised goods) or are likely to deteriorate or expire rapidly (e.g. dairy products); for the supply of audio or video recordings or computer software which were unsealed by the consumer; for the supply of newspapers, periodicals or magazines; or for gaming, betting or lottery services.
In September 2006, a guide for businesses on distance selling was issued jointly by the Office of Fair Trading and the Department of Trade and Industry (which later became the Department for Business, Innovation and Skills). That guidance states that administrative or other preparatory work (such as setting up an account) cannot be equated to the carrying out of a service. This may impact on the right of businesses to say that the provision of a service has begun and therefore cannot be cancelled.
On the cancellation of a contract, any sum paid by the consumer must be repaid as soon as possible and, in any case, within 30 days of cancellation. The full price paid for the goods must be refunded and this includes the cost of delivery of the goods to the consumer.
In certain circumstances the supplier may charge the consumer for the cost of the supplier recovering the goods (e.g. where the consumer fails to return them). To do so, the contract must specify that the consumer is under an obligation to return the goods if he or she cancels the contract and the consumer gets notice of this in advance as part of the written confirmation relating to the right to cancel. The costs cannot be passed on to the consumer where the goods are returned because they are faulty or do not comply with the contract for some other reason.
Where the supplier wishes to send substitute goods (e.g. where the original goods ordered are not in stock, but similar goods are available), the supplier must have provided for the possibility of sending substitute goods in its contract and in the case of the consumer cancelling the contract and returning the goods, the supplier must bear the cost of such return.
Return of goods by Consumer after Cancellation
If the consumer has received the goods before cancelling the contract, the consumer will be under a duty to restore those goods to the supplier and, in the meantime, to keep them and take reasonable care of them. This duty to take reasonable care ends if the consumer (at his own expense) sends the goods to the supplier. The consumer is under no obligation to deliver the goods to the supplier except at the consumer’s own premises and in pursuance of a written request by the supplier.
Note that failure by a consumer to return goods will not permit the supplier to delay in making a refund.
Similarly, if a consumer returns damaged goods he or she does not necessarily lose the right to cancel. The supplier can only rely on the right of action against the consumer for breaching the statutory duty to take reasonable care of the goods.
If, within 21 days following cancellation of the distance contract, the supplier requests the consumer to return the goods and the consumer unreasonably refuses or unreasonably fails to comply with the request, the consumer’s obligation to retain possession and take reasonable care of the goods continues until he delivers the goods to the supplier.
If the supplier fails to request the return of the goods within 21 days following cancellation of the distance contract, the consumer’s obligation to take reasonable care of the goods ceases at the end of the 21 day period.
Where the supplier is holding any sum as security, the consumer is not under an obligation to return the goods after cancellation until the supplier discharges any duty on him to release the security under the Regulations.
Goods given in part-Exchange
In a situation where the supplier had agreed to take goods in part-exchange and those goods have been delivered to him, if the consumer cancels, the supplier must return the part-exchange goods in a condition substantially as good as they were delivered within 10 days of the cancellation, otherwise the consumer is entitled to a sum equal to the part-exchange allowance.
If no part-exchange allowance was agreed, the sum shall be what would be reasonable to allow for the part-exchange goods if no notice of cancellation had been served.
Performance of the Contract
Unless the parties agree otherwise, the supplier must perform the contract within 30 days from the day after the consumer sent his order to the supplier.
If the supplier is unable to perform the contract within this period, he must inform the consumer and repay any sum paid as soon as possible (and in any event within 30 days), although it is open to the supplier and the consumer to agree a revised date for delivery.
A contract which is not performed within the 30 day period shall be treated as if the consumer never entered into it, but the consumer will still have remedies for non-performance.
If a longer period than 30 days is required then this must be clearly stated in the supplier’s terms and conditions and the prior information. The supplier may perform the contract by substitute goods or services of equivalent quality and price if the contract provided for this possibility and the supplier gave the consumer the prior information in the appropriate way.
Payment by card
Where fraudulent use has been made of a consumer’s payment card in respect of a distance contract then the consumer will be entitled to cancel any payment which has been made as a result of such fraudulent use.
Note that the Regulations refer to “payment card” and not simply credit card. This means that debit cards, charge cards and store cards will be afforded protection under the Regulations as well as credit cards.
Inertia Selling / Unsolicited Goods
It is an offence under the Regulations for a supplier to send unsolicited goods and then demand payment or threaten legal proceedings to get payment for the goods. The recipient of the goods may use, deal with or dispose as if they were an unconditional gift.
Any term in a distance selling contract which is inconsistent with the protection of the consumer as set out above shall be automatically void and as such, the supplier will not be able to rely on the term.
The Regulations are enforced by the Office of Fair Trading, local authority trading standards departments in England, Scotland and Wales and the Department of Trade, Enterprise and Investment in Northern Ireland. These bodies have the power to consider complaints and seek court orders for compliance with the Regulations.
As mentioned above, a guide for businesses on distance selling was issued jointly by the Office of Fair Trading and the Department of Trade and Industry (which later became the Department for Business, Innovation and Skills) in 2006.
The guidance helps to clarify certain areas of the Regulations, and provides practical advice to suppliers on their obligations.
The Key Areas Include:
Guidance on consumers’ rights of cancellation and time limits for cancelling orders; practical advice on when refunds can and cannot be lawfully refused and what should and should not be refunded; information on how consumers are expected to exercise rights to cancel in practice; and information on the relationship between the E-commerce Regulations and the Regulations, and how the interaction between these two pieces of legislation affecting e-tailers is to be resolved.