Consumer contracts regulations: sample clauses

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 are coming into force next week. They include a detailed list of information that a trader must provide to a consumer in situations where the Regulations apply. Should you use the model instructions on cancellation to help you comply with this requirement, or should you draft special legal clauses for your contracts?

The list of information that must be supplied is set out in Schedule 2, and includes the following items:

(l) where a right to cancel exists, the conditions, time limit and procedures for exercising that right in accordance with regulations 27 to 38;

(m) where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;

(n) that, if the consumer exercises the right to cancel after having made a request in accordance with regulation 36(1), the consumer is to be liable to pay the trader reasonable costs in accordance with regulation 36(4);

Regulations 10(3) and 13(3) each provides that:

The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Schedule 3; and a trader who has supplied those instructions to the consumer, correctly filled in, is to be treated as having complied with paragraph (1) in respect of those paragraphs.

The model instructions can be seen here:

http://www.legislation.gov.uk/uksi/2013/3134/schedule/3/made

Using the model instructions is one way to comply with this element of the information requirements, and in many cases it will be the best way to do so. However, in other cases a trader may wish to provide this information integrated into its terms and conditions (whether alongside the model instructions, or as an alternative to the model instructions). There are at least three good reasons for doing so: to limit the number of legal documents that have to be managed by the trader and given to consumers; to help ensure that terms and conditions are consistent with legislative requirements; and, where the legislation is a poor fit for the factual circumstances, to provide an interpretation of the legislation for those factual circumstances.

In addition, the model instructions arguably simplify the legislative provisions too much, and may not be of much use to the parties in determining their rights and obligations under the legislation. More detailed clauses in the terms and conditions can do this, without necessarily reproducing all the complexity of the legislative provisions.

I've spend some time updating all of the SEQ Legal templates to reflect the new laws. I've set out some of the sample clauses below, and you are welcome to use these in your own legal documents. While the use of these clauses will help you to comply with some requirements of the Regulations, there is much else besides that you will need to do to comply.

In any case, on to the clauses. I have cut-and-pasted them from existing templates, and they retain the source template numbering. Any comments, questions or indeed criticisms would be gratefully received.

The first clause is designed for website T&Cs under which products are sold to consumers:

9.1 This Section 9 applies if and only if you offer to contract with us, or contract with us, as a consumer - that is, as an individual acting wholly or mainly outside your trade, business, craft or profession.
 
9.2 You may withdraw an offer to enter into a contract with us through our website or cancel a contract entered into with us through our website (without giving any reason for your withdrawal or cancellation) at any time within the period:
(a) beginning upon the submission of your offer; and
(b) ending at the end of 14 days after the day on which the products come into your physical possession or the physical possession of a person identified by you to take possession of them (or, if the contract is for delivery of multiple products, lots or pieces of something, 14 days after the day on which the last of those products, lots or pieces comes into your physical possession or the physical possession of a period identified by you to take possession of them).
 
9.3 In order to withdraw an offer to contract or cancel a contract on the basis described in this Section 9, you must inform us of your decision to withdraw or cancel (as the case may be). You may inform us by means of any clear statement setting out the decision. In the case of cancellation, you may inform us using the cancellation form that we will make available to you. To meet the cancellation deadline, it is sufficient for you to send your communication concerning the exercise of the right to cancel before the cancellation period has expired.
 
9.4 If you cancel a contract on the basis described in this Section 9, you must send the products back to us (to [return address]) or hand them over to us or a person authorised by us to receive them. You must comply with your obligations referred to in this Section 9 without undue delay and in any event not later than 14 days after the day on which you inform us of your decision to cancel the contract. You must pay the direct cost of returning the products.
 
9.5 If you cancel an order in accordance with this Section 9, you will receive a full refund of the amount you paid to us in respect of the order including the costs of delivery to you, except:
(a) if you chose a kind of delivery costing more than the least expensive kind of delivery that we offer, we reserve the right to retain the difference in cost between the kind of delivery you chose and the least expensive kind of delivery that we offer; and
(b) as otherwise provided in this Section 9.
 
9.6 If the value of the products returned by you is diminished by any amount as a result of the handling of those products by you beyond what is necessary to establish the nature, characteristics and functioning of the products, we may recover that amount from you up to the contract price. We may recover that amount by deducting it from any refund due to you or require you to pay that amount direct to us. Handling which goes beyond the sort of handling that might reasonably be allowed in a shop will be "beyond what is necessary to establish the nature, characteristics and functioning of the products" for these purposes.
 
9.7 We will refund money using the same method used to make the payment, unless you have expressly agreed otherwise. In any case, you will not incur any fees as a result of the refund.
 
9.8 Unless we have offered to collect the products, we will process a refund due to you as a result of a cancellation on the basis described in this Section 9 within the period of 14 days after the day on which we receive the returned products or (if earlier) after the day on which you supply to us evidence of having sent the products back. If we have not sent the products to you at the time of withdrawal or cancellation or have offered to collect the products, we will process a refund due to you without undue delay and, in any case, within the period of 14 days after the day on which we are informed of the withdrawal or cancellation.
 
9.9 You will not have any right to cancel a contract as described in this Section 9 insofar as the contract relates to:
(a) [the supply of any sealed audio recordings, sealed video recordings or sealed computer software which have been unsealed by you;]
(b) [the supply of products the price of which is dependent upon fluctuations in financial markets which we cannot control and which may occur during the cancellation period;]
(c) [the supply of newspapers, periodicals or magazines, with the exception of subscription contracts for the supply of such publications;]
(d) [the supply of goods which are liable to deteriorate or expire rapidly;]
(e) [the supply of non-prefabricated goods that are made on the basis of an individual choice of or decision by you, or goods that are clearly personalised;]
(f) [the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, where such goods have been unsealed by you; and]
(g) [the supply of goods which are, according to their nature, inseparably mixed with other items after delivery.]

The second clause is designed for website T&CS under which services are provided to consumers:

11.1 This Section 11 applies if and only if you offer to contract with us, or contract with us, as a consumer - that is, as an individual acting wholly or mainly outside your trade, business, craft or profession.
 
11.2 You may withdraw an offer to enter into a contract with us through our website, or cancel a contract entered into with us through our website, at any time within the period:
(a) beginning upon the submission of your offer; and
(b) ending at the end of 14 days after the day on which the contract is entered into,
subject to Section 11.3. You do not have to give any reason for your withdrawal or cancellation.
 
11.3 You agree that we may begin the provision of services before the expiry of the period referred to in Section 11.2, and you acknowledge that, if we do begin the provision of services before the end of that period, then:
(a) if the services are fully performed, you will lose the right to cancel referred to in Section 11.2;
(b) if the services are partially performed at the time of cancellation, you must pay to us an amount proportional to the services supplied or we may deduct such amount from any refund due to you in accordance with this Section 11.
 
11.4 In order to withdraw an offer to contract or cancel a contract on the basis described in this Section 11, you must inform us of your decision to withdraw or cancel (as the case may be). You may inform us by means of any clear statement setting out the decision. In the case of cancellation, you may inform us using the cancellation form that we will make available to you. To meet the cancellation deadline, it is sufficient for you to send your communication concerning the exercise of the right to cancel before the cancellation period has expired.
 
11.5 If you withdraw an offer to contract, or cancel a contract, on the basis described in this Section 11, you will receive a full refund of any amount you paid to us in respect of the offer or contract, except as specified in this Section 11.
 
11.6 We will refund money using the same method used to make the payment, unless you have expressly agreed otherwise. In any case, you will not incur any fees as a result of the refund.
 
11.7 We will process the refund due to you as a result of a cancellation on the basis described in this Section 11 without undue delay and, in any case, within the period of 14 days after the day on which we are informed of the cancellation.

The third clause is for website T&Cs under which digital content is supplied to consumers:

7.1 This Section 7 applies if and only if you offer to contract with us, or contract with us, as a consumer - that is, as an individual acting wholly or mainly outside your trade, business, craft or profession.
 
7.2 You may withdraw an offer to enter into a contract with us through our website, or cancel a contract entered into with us through our website, at any time within the period:
(a) beginning upon the submission of your offer; and
(b) ending at the end of 14 days after the day on which the contract is entered into,
subject to Section 7.3. You do not have to give any reason for your withdrawal or cancellation.
 
7.3 You agree that we may begin the provision of articles before the expiry of the period referred to in Section 7.2, and you acknowledge that, if we do begin the provision of articles before the end of that period, you will lose the right to cancel referred to in Section 7.2.
 
7.4 In order to withdraw an offer to contract or cancel a contract on the basis described in this Section 7, you must inform us of your decision to withdraw or cancel (as the case may be). You may inform us by means of any clear statement setting out the decision. In the case of cancellation, you may inform us using the cancellation form that we will make available to you. To meet the cancellation deadline, it is sufficient for you to send your communication concerning the exercise of the right to cancel before the cancellation period has expired.
 
7.5 If you cancel an order on the basis described in this Section 7, you will receive a full refund of the amount you paid to us in respect of the order.
 
7.6 We will refund money using the same method used to make the payment, unless you have expressly agreed otherwise. In any case, you will not incur any fees as a result of the refund.
 
7.7 We will process the refund due to you as a result of a cancellation on the basis described in this Section 7 without undue delay and, in any case, within the period of 14 days after the day on which we are informed of the cancellation.

Finally, the fourth clause is designed for T&Cs of business where services are being provided to consumers, and contracts may be entered into at a distance or off-premises:

15.1 This Clause 15 applies if and only if the Customer enters into a Contract with the Provider as a consumer - that is, as an individual acting wholly or mainly outside the Customer's trade, business, craft or profession - where the Contract is a distance contract or off-premises contract within the meaning of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
 
15.2 The Customer may withdraw an offer to enter into a Contract with the Provider at any time; and the Customer may cancel a Contract entered into with the Provider at any time within the period:
(a) beginning when the Contract was entered into; and
(b) ending at the end of 14 days after the day on which the Contract was entered into,
subject to Clause 15.3. The Customer does not have to give any reason for the withdrawal or cancellation.
 
15.3 The Customer agrees that the Provider may begin the provision of services before the expiry of the period referred to in Clause 15.2, and the Customer acknowledges that, if the Provider does begin the provision of services before the end of that period, then:
(a) if the services are fully performed, the Customer will lose the right to cancel referred to in Clause 15.2;
(b) if the services are partially performed at the time of cancellation, the Customer must pay to the Provider an amount proportional to the services supplied or the Provider may deduct such amount from any refund due to the Customer in accordance with this Clause 15.
 
15.4 In order to withdraw an offer to contract or cancel a Contract on the basis described in this Clause 15, the Customer must inform the Provider of the Customer's decision to withdraw or cancel (as the case may be). The Customer may inform the Provider by means of any clear statement setting out the decision. In the case of cancellation, the Customer may inform the Provider using the cancellation form that the Provider will make available to the Customer. To meet the cancellation deadline, it is sufficient for the Customer to send its communication concerning the exercise of the right to cancel before the cancellation period has expired.
 
15.5 If the Customer withdraws an offer to contract, or cancels a contract, on the basis described in this Clause 15, the Customer will receive a full refund of any amount the Customer paid to the Provider in respect of the offer or contract, except as specified in this Clause 15.
 
15.6 The Provider will refund money using the same method used to make the payment, unless the Customer has expressly agreed otherwise. In any case, the Customer will not incur any fees as a result of the refund.
 
15.7 The Provider will process the refund due to the Customer as a result of a cancellation on the basis described in this Clause 15 without undue delay and, in any case, within the period of 14 days after the day on which the Provider is informed of the cancellation.

Comments

I have a contract with a cable tv company that I took out in May 2016. The contract was for 12 months. In January 2017, I was offered a speacial offer on part of my package for 6 months, with no contract extension. I specifically stated I did not want to extend my contract. I recorded the details on the providers bill and in my diary. I have now been told that my contract, which I planned to allow to expire in May was indeed extended to January 2018 as a result of taking the offer. They cannot locate the telephone recording of when this contract extension was accepted by me. (I did not accept it because it was not mentioned) and have now stated that without the recording, the burden of proof lies with me to prove I did not agree to an extension when I accepted the offer. Therefore the contract remains in place until January. I did not cancel the new contract within 14 days because I did not know there was one. Is the burden of proof with them?

I had a contract for R10 000 with a catering company to do a wedding function for me for which i paid R4000 deposit as this and this function was cancelled within 14 days after i took out the contract.

The only wording on this contract was no refund on cancellation.

After several discussions with the caterers was told i will only be refunded R1000. Please advise me of my rights.

Sorry, I can't help with this as presumably it is not an English law contract.

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