Distance Selling Regulations: right of cancellation

NOTE: This post is now of historical interest only. The legislation referred to in this post has been superseded by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

All online traders in the UK and wider EU should know about the right to cancel distance contracts available under the Distance Selling Directive. This Directive was implemented in the UK by the Consumer Protection (Distance Selling) Regulations 2000 (the “Distance Selling Regulations”), which came into force on 31 October 2000.  The Regulations were subsequently amended by the Consumer Protection (Distance Selling) (Amendments) Regulations in 2005.

The Distance Selling Regulations apply to most contracts between suppliers and consumers made via a website for the supply of goods and services.  See Distance Selling Regulations: disclosures for the exceptions. The rules dealing with a consumer's right to cancel are covered by Regulations 10 to 13.

The right to cancel

Regulation 10 gives the consumer a right to cancel a distance contract, provided the consumer gives a notice of the cancellation in writing to the supplier within the cancellation period.  Once this notice is given, the contract is treated as if it had never been made. Hand delivery, postal delivery, facsimile or email are all acceptable modes of delivering a cancellation notice.

Informational requirements

Pursuant to Regulations 7 and 8, the supplier must “provide to the consumer in writing, or in another durable medium which is available and accessible to the consumer” certain information, which includes “the existence of a right of cancellation except in the cases referred to in Regulation 13” (referred to in this post as the “cancellation information”). See Distance Selling Regulations: disclosures for full details of the cancellation information.

Factors affecting the length of the cancellation period

The length of the cancellation period is determined by: whether and when the supplier provides the cancellation information; and whether the contract is for the supply of goods or the supply of services.

Cancellation period in contracts for the supply of goods

“The cancellation period in case of contracts for the supply of goods begins with the day on which the contract is concluded” (Regulation 11(1)), and the end date depends upon the circumstances. The cancellation information should be provided “(a) prior to the conclusion of the contract, or (b) thereafter, in good time and in any event ... at the latest at the time of delivery where goods not for delivery to third parties are concerned” (Regulation 8(1)). There are 3 main scenarios.

Scenario 1: In scenario 1, where the supplier provides the cancellation information in time, then “the cancellation period ends on the expiry of the period of seven working days beginning with the day after the day on which the consumer receives the goods” (Regulation 11(2)). So, where an e-commerce website has properly drafted T&Cs of sale and accordingly provides the proper information, the consumer will have a 7 working day cancellation period from the time of the delivery of the goods.

Scenario 2: Scenario 2 covers the situation where the supplier fails to supply the cancellation information in good time (see above), but does provide the cancellation information “within the period of three months beginning with the day after the day on which the consumer receives the goods”. In this case, “the cancellation period ends on the expiry of the period of seven working days beginning with the day after the day on which the consumer receives the information” (Regulation 11(3)).

Scenario 3: The last scenario applies where the supplier has not provided the consumer with the cancellation information at all. In this case “the cancellation period ends on the expiry of the period of three months and seven working days beginning with the day after the day on which the consumer receives the goods.” (Regulation 11(4)). In other words, even if the consumer has not been advised about his or her right to cancel, the cancellation period expires after three months and 7 working days following the receipt of the goods.

Cancellation period in contracts for the supply of services The applicable cancellation period for contracts for the supply of services is very similar to that for the supply of goods, and is governed by Regulation 12. Here, the cancellation information should be provided “(a) prior to the conclusion of the contract, or (b) thereafter, in good time and in any event … during the performance of the contract...” (Regulation 8(1)). The main difference in the calculation of the cancellation period in the case of a contract for services is that the cancellation period may come to an abrupt end if the provision of the services has commenced, or alternatively if the services have been completed.

Scenario 1 In scenario 1, where the supplier provides the cancellation information “on or before the day on which the contract is concluded … the cancellation period ends on the expiry of the period of seven working days beginning with the day after the day on which the contract is concluded” (Regulation 12(2)). However, “unless the parties have agreed otherwise, the consumer will not have the right to cancel the contract by giving notice of cancellation … in respect of contracts … for the supply of services if the performance of the contract has begun with the the consumer's agreement – before the end of the cancellation period referred to in Regulation 12(2); and after the supplier has provided ... [the cancellation information]” (Regulation 13(1)(a)).

Scenario 2 In scenario 2, where the supplier provides the cancellation information to the consumer “within the period of three months beginning with the day after the day on which the contract is concluded, the cancellation period ends on the expiry of the period of seven working days beginning with the day after the day on which the consumer receives the information.” (Regulation 12(3)). Note that Regulation 13(1)(a) may also apply here, where performance of the contract begins after the provision of the cancellation information. Alternatively, under Regulation 12(3A), “where the performance of the contract has begun with the consumer's agreement before the expiry of the period of seven working days beginning with the day after the day on which the contract was concluded and the supplier has not ... [supplied the cancellation information] … on or before the day on which performance began, but provides to the consumer … [the cancellation information] ... in good time during the performance of the contract, the cancellation period ends - (a) on the expiry of the period of seven working days beginning with the day after the day on which the consumer receives the information; or (b) if the performance of the contract is completed before the expiry of the period referred to in sub-paragraph (a), on the day when the performance of the contract is completed.”  This means that the consumer has a cancellation period of 7 working days from the time the consumer receives the cancellation information, unless the provision of the services has started with the agreement of the customer.  In that case, the cancellation period ends within 7 days of the consumer receiving the information, or when the contract has been performed.

Scenario 3 In scenario 3, where the supplier does not provide the consumer with the cancellation information at all, and the provision of the services has not yet begun, “the cancellation period ends on the expiry of the period of three months and seven working days beginning with the day after the day on which the contract is concluded.” (Regulation 12(4)).

Other exceptions to the right to cancel

The exceptions to the right to cancel are governed by Regulation 13.  (Note that I have dealt with Regulation 13(1)(a) above, and so will ignore this provision for the purposes of this section.)

Under Regulation 13(1), “unless the parties have otherwise agreed”, the consumer will also not have the right to cancel “in respect of contracts: (b) for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier; (c) for the supply of goods made to the consumer's specifications or clearly personalised or which by reason of their nature cannot be returned or are liable to deteriorate or expire rapidly; (d) for the supply of audio or video recordings or computer software if they are unsealed by the consumer; (e) for the supply of newspapers, periodicals or magazines; or (f) for gaming, betting or lottery services.”

Other information

Where the right to cancel exists, the supplier must also advise the consumer, if the consumer needs to return the goods to the supplier (Regulation 8(2)(b)(i)), and who is to be responsible for the cost of returning the goods to the consumer (Regulation 8(2)(b)(ii)).

Comments

What if the information on the right to cancel merely states that ... "we do not accept cancellation"? Does this mean that I am now legally bound by this verbal contract, despite the person selling was in fact potentially impersonating or giving the impression of being a police officer?

Where there is an obligation on a supplier to provide for a right of cancellation under the Regulations, that obligation cannot be avoided by T&Cs stating "we do not accept cancellations".

Does distance selling apply where I have bought an iPad online and it has come delivered to me with a minor scratch on the screen, however looking back at the website it says no refunds or exchanges.. what am I meant to do?

Assuming you bought the iPad as a consumer and not a business, and assuming the seller was acting in the course of a business, the Regulations may apply. In addition, you may have rights under sale of goods legislation.

Scenario question for you. If the goods provided are used within the 7 day period following delivery of T&C's and goods, presumably the goods can no longer be returned and credit expected to be issued? so the Customers right to return is in essence null and void (unless the goods are in some way faulty)?

The Regulations do not say that the right to cancel is nullified by use of the goods.

They do however say (Regulation 17) that the consumer has duties under the Regulations to maintain possession of the goods and to take reasonable care of them pending restoration to the supplier.

I think that, for some types of goods, taking "reasonable care" might include not opening the packaging of the goods, and for some types of goods it might include not using the goods. You may however be able to take reasonable care of some types of goods even if the packaging has been opened and the goods have been used. The Regulations don't give much guidance on this point, and it may be difficult to call in any particular case.

Yes I am the consumer and the seller is acting in course of a business.. I'm not sure what remedies will be availible for me? Thanks for your help

Priya - there are too many variables here for me to offer succinct guidance. If you need any further help, you should instruct a solicitor.

Looking for some advice on this scenario please: Day 1: Sign up for a service online Day 4: Receive T&Cs through the post Day 10: Send a cancellation email Now if the business that provide the service state that because the service started immediately that there is (under the distant selling act) a zero day cancellation period. Then I would have no right to cancel? Even if I haven't paid for the service yet? My question is, what constitutes a service that starts immediately - I believe this to be something like a phone contract or paying for access to a website.

Hi David

I can't advise on your particular circumstances: I'd need a lot more information to form a view.

As far as I'm aware there isn't any judicial authority on the question of when the performance of a service begins within the meaning of the Regs. However, I think it's safe to say that a contract doesn't necessarily begin being performed when the service provider says it begins! There must be some act by or on behalf of the service provider. Does the customer have to "receive" (or start receiving) the service for it to commence? Probably not, although this may depend upon the particular circumstances.

Hi, this one states that you can't cancel 'unsealed' software.

Does the distance selling act apply to software that is provided digitally ? If a consumer purchases software from an online distributor and then proceeds to download the software, would this act still apply ? I ask as once can hardly suggest that something downloaded is sealed, it's not a product that can no-longer be resold.

The standard approach is to treat boxed software as a product under the Regs, and downloaded software as a service. Accordingly, the provisions about sealed software don't apply to downloads. Instead, suppliers can agree with customers that the cancellation right evaporates upon the commencement of the service (which could be the download of the software, or the making aviailable of the software for download).

I wanted to book a hotel for August, but I made a mistake and booked for this Friday. Straight away I contacted the hotel but they told me is not possible to cancel within the 7 day period preceding the booking. Do the distance selling regulations help here?

Unfortunately the DSRs are not going to help you here. Regulation 6(2) excludes most contracts for hotel accomodation from most of the provisions of the DSRs, including the cancellation provisions:

Regulations 7 to 19(1) shall not apply to— (a) contracts for the supply of food, beverages or other goods intended for everyday consumption supplied to the consumer’s residence or to his workplace by regular roundsmen; or (b) contracts for the provision of accommodation, transport, catering or leisure services, where the supplier undertakes, when the contract is concluded, to provide these services on a specific date or within a specific period.

I have found a website that offers low-cost access to its database. It is non-profit, and its turnover is believed to be very small (i.e. it only makes the occasional sale). Under these circumstances, should it comply with DSRs, and also provide a "business" name and location? 

If this is a UK B2C site, then it probably needs to comply with the DSRs.

If it is a UK B2B site, then even though it will not need to comply with the DSRs, it will likely have an obligation under the Ecommerce Regs and/or the Provision of Services Regs and/or companies legislation to properly identify its owner and supply address information.

If you book and pay for a class based service (fitness class etc) via a web site where class attendees are limited and cancellations cannot be re-sold, are you still entitled to a refund via the 7 day rule? Seems very unfair on the provider, who could end up with an empty class if everyone paid and cancelled prior to the start of the class, but still have all the costs associated with delivering the class?

This sort of service will usually, in my view, fall within the Reg 6(2)(b), which excludes certain contracts for leisure services from the cancellection provisions of the DSRs:

6(2) Regulations 7 to 19(1) shall not apply to - (a) contracts for the supply of food, beverages or other goods intended for everyday consumption supplied to the consumer’s residence or to his workplace by regular roundsmen; or (b) contracts for the provision of accommodation, transport, catering or leisure services, where the supplier undertakes, when the contract is concluded, to provide these services on a specific date or within a specific period.

The DSRs are not, of course, supposed to be fair to sellers/providers. The justification for the potential unfairness is that the overall effect of the regulations will be to increase distance sales, and therefore help businesses.

I have been told "you didn't cancel within the cooling off time" and that I should pay the amount I owe. The reality is I never attended the course and I cancelled within the cooling period - but I didn't cancel in writing. They say I have to pay the full amount of the course which is £3800. I am worring about the horrible things that might happen to me. Does any one know what to do?

Cancellation notices under the DSRs have to be in writing.

That said, there may still be circumstances that allow you to avoid liability to pay the course fees. E.g. if the provider hasn't properly complied with its disclosure obligations under the DSRs, then the cancellation period may be extended in such a way that you could give written notice of cancellation now. As usual, it all depends upon the particular facts. Accordingly, you should show all the relevant papers to your solicitor to get proper advice.

Could you please advise. A purchase was made through drivinglicence.uk.com. All they actually do is check a few forms before sending them to you. I tried to cancel within an hour, but they said that they have provide the service straight away!

Do I have any rights at all on this one?

The right to cancel in the case of a contract for services does evaporate where the provider begins the provision of the service, with the agreement of the customer, during the cancellation period.

If their legal documents and processes are compliant with the DSRs, then there is unlikely to be a remedy here under the DSRs.

My wife is taking over a small shop, she was cold called by a number of brokers, one of whom stated that it was illegal not to have an energy supplier arranged prior to moving in. He then allegedly checked tariffs before stating that her preferred choicr EON would not supply her as the previous account was unpaid, he then arranged, after a forty minute hard sell a contract with another company.When my wife got home and discussed it with me I checked both with the previous tenant and EON and there is no unpaid bill. EON were furious that anyone could state they have access to their records.

I immediately tried to cancel the contract but have been told that there is NO 'cooling off' period, it doesn't apply as the company have purchased electricity on the strength of the contract, we have been told we have no rights cancellation, and any investigation in my allegations of misselling, misrepresentation and outright lies by the broker may take a matter of weeks and would form no basis for terminating a contract anyway.

Other than the obvious 'gullible and shouldn't have done it in the first place' anyone got any thoughts on a next step or what her rights actually are?

In this kind of situation, there are usually various legal remedies availble. For example. your wife may be able to rescind the contract under the law of misrepresentation. This could also be a breach of the Business Protection from Misleading Marketing Regs 2008.  See:

http://www.legislation.gov.uk/uksi/2008/1276/pdfs/uksi_20081276_en.pdf

I have an issue with a retail company. I bought an item on the internet. I paid on placing the order. I have asked for my money back because they have not delivered within the 30 days (a 'reasonable' time period) even though their website clearly states delivery is within 3-5 days and their excuse has been they've not received the item from thier supplier.

However, they say that they don't enter into a contract until the items are dispatched. Surely since they took my money then they clearly have accepted a contract. Anyway, my question is: at what point in the distance selling process is a 'contract' created? Thanks.

This is an interesting point, and arguably a gap in the existing DSRs. The existing DSRs do not specifically handle the possibility of their being a gap between an order being submitted and the contract coming into force. They only apply where there is a "distance contract", but they don't define when a contract comes into being - which in England and Wales remains a matter for the general law of contract.

To decide when a contract comes into force a lawyer looks at the process of communications between the parties to see when all the elements required for a contract are present. These elements include an offer, an acceptance of that offer, consideration, an intention to create a legal relationship, etc. In the normal course of things, I would expect a contract with an online retailer to come into force when the retailer sends an order confirmation, but it does very much depend upon the particular circumstances. What the retailer's legal documentation says is a relevant factor, but not necessarily determinative.

In any case, if there is no contract, on what legal basis does the retailer think they are entitled to keep your money? One possibility is that you have rights to recover the money through the tort of conversion (although you would need to take proper legal advice to be sure of this).

The new distance selling rules, coming into force in June, do, if my memory is right, cover this point explicitly.

I paid in full for wedding photography services at my wedding and also a family photoshoot through Facebook.

On the day of purchase the photographer stated she would send full details and confirmation that evening. She did not, and I chased her up the following day. She did not reply but advertised her services online. I followed her up the next day and she replied after again placing several advertisements after she had 'seen' my messages requesting what she had promised.

She sent confirmation of a deposit being paid for both, not being paid in full for either. No further details were included such as the basic information of the prints which would be included neither were any terms and conditions or her contract information included. I asked her to amend the email to state it was all paid in full which she said she would and she said all paperwork would follow - not what she had said initially.

A few days passed and I became increasingly worried that someone I had just paid in full had not had the consideration and politeness to send me what she had promised. Therefore on day 10 after I booked this I asked her to cancel and to refund my money. She refused and said she would only refund a portion of it (that which was not a deposit) and she had held the date (which is 18 months away).

I do not think this is fair, what are my rights?

She has still not, to date, supplied me with any of the information and Paypal will not refund my money, as it is not something which is covered under their buyer protection. Many thanks!

To enter a contract online to attend an event it states there will be no refunds made on cancellation within 14 days of the event and refunds for cancellations received within more than 14 days of the event will be subject to an admin charge of 20% of the event fee and a minimum £10 admin charge. Apparently this is due to the costs incurred by the host of booking venues etc.

How does this work with rights under the new DSR of the 14 day cancellation period where the consumer can walk away with full money back? If the host has booked a venue do I have to pay a proportion of the costs due to the service having commenced within the cancellation period? Or are their terms only enforceable outside of the 14 day cooling off period? The event is for project management so I assume falls outside of the leisue exemptions. 

Presumably this is a B2B event, and therefore outside the scope of the B2C distance selling laws.

I am unsure - they are professional body events and I would be attending to further my professional qualifications, however membership to join this organisation and booking to attend events is open to both corporate bodies and individuals such as myself. As an individual booking, does that make it B2C?

In the current UK regs:

"“consumer” means any natural person who, in contracts to which these Regulations apply, is acting for purposes which are outside his business".

However, there is a different definition in the distance selling directive - the source of the UK regs:

"'consumer` means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;"

Simply being an individual (a natural person) doesn't make you a consumer: it is necessary but not sufficient.

So would the contract you describe be B2C? I don't know, but I suspect not.

If a client books a photographer (or other supplier) for a wedding, for example, and that supplier then reserves the date for them, would a 14 day cancellation policy still apply? To me it sounds not too dissimilar from reserving a hotel room, which seems to be exempt from this.

The most likely candidate for an applicable exception (under the current law, the Consumer Contracts (Information etc) Regulations 2013, which are NOT discussed above) is in Reg 28(1)(h):

This Part [ie the part of the Regs dealing with cancellation] does not apply as regards the following ... (h) the supply of ... services related to leisure activities, if the contract provides for a specific date or period of performance.

However, as bookings for wedding photography will generally be made a lot more than 14 days before the wedding, I don't think it would be too onerous for a wedding photographer to assume that the cancellation right does apply.

I ordered a product online (Day 1) and cancelled by telephone, the next day (Day 2), through the company's Support call centre.  I was informed the product would not be delivered.  But the product was delivered two days later (Day 4).  I phoned again (Day 5) and it was confirmed to me that I had cancelled the order and to email their company at least two days before I wanted the product to be picked up for return.  I emailed the company (Day 7) for goods to be picked up two days later on (Day 9).  I emailed a second time the company today (Day10), nine days since I cancelled, and still no pick up has arrived, or contact from the company for when the goods are to be picked up.  

What should I do with the goods and when should the monies I paid be refunded to my bank account?

The current law is here:

http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf

You should keep the goods until they are collected (within reason), and not do anything to them that might diminish their value to the seller.

You should get a refund on or before Day 16, irrespective of collection.  See Regulation 34.

Thanks for information Alasdair, but what is "within reason"?

I have been informed that after 21 days after cancellation (Day 22) I can do anything with the goods.  That is, I have no responsibility for the goods delivered and I can dispose of as I wish.  Is this correct?  I cancelled on the 3rd December.  23rd is 21 days if I include cancellation date.  24th is 21 days if I do not.  

Laughing as I write this, as I have lots of family coming to my small house on Christmas day and I have nowhere else to put the box!  I have a massive, unwelcome box 'sitting' in my room, 1.5m x 1.0m.  Can I give it away to a charity on the 24th, Christmas Eve?  OR if no one wants the goods, dispose of in a dump, drastic yes, but I need the space and family comes first.  If I do either of the said previous actions would I be held liable in any way? 

And what to do if no monies are showing refunded to my bank account on the 24th (Day 22) ? Can I still dispose of goods?  Even though you state monies should be refunded to my account by the 18th (Day 16).

If seller does contact me and says cannot pick up goods until after Christmas, can I state to them, verbally or by email, that if they do not collect goods before 24th December (Day 22) I will dispose of goods and not be held liable?

Who informed you that after 21 days you were free to do anything with the goods? What was the legal basis of this?

The Consumer Contracts Regulations do not specifically cover the question of how long the consumer must retain goods that the seller has said would be collected. Where it is the consumer's responsibility to return the goods, the consumer has 14 days, which I guess gives you some idea of what might be a reasonable period.

Information about 21 days was given to me by a 'Barrack Room lawyer' in the pub, where else!

So, the 17th December (Day15) is 14 days since I informed the seller that I wanted to cancel.  Then the 18th (Day 16) is when monies should be back in my account AND I can contact an appropriate charity to donate the goods to, as I have held the seller's goods in a fit and safe state for 14 days and they have not made any contact with me about collecting their goods, either by letter, email or my mobile phone.  

Thus, I can make a fair and reasonable assumption that they do not want their goods back.  I can, therefore, go ahead with my 'donation' and expect all monies to be returned to me.  Would this be a fair and reasonable view for me to take?

Would you agree that I can proceed with my 'donation

... I would probably wait quite a bit longer before disposing of the goods, perhaps wrapping them up and keeping them outside if practicable, and wouldn't dispose of them until I had been refunded in any event.

I guess the appropriate approach depends somewhat upon the value and the nature of the goods. You probably wouldn't treat an unwanted pencil in the same way you would treat an unwanted diamond ring!

Ultimately, however, remember that ultimately the law is not clear on this question - and there is therefore plenty of room for dispute.

On the 9th of December I ordered 13kg bag of dog food. I had a tracking number from them through a shipping company. The order was not delivered to me but it said I had signed for it. I contacted the seller straight away and they contacted the shipping company.

The driver has admitted taking it to the wrong address but can not get any reply when going back to collect it. May I add the right address was on the tracking, but was delivered 25 miles away from me. I asked for it to be cancelled as I'm not paying for something I have not received. This was all cancelled on the 10th December but they are saying I have to wait now for the shipping company to send a claim form before I can receive my refund. Is the correct?

Yes, you are entitled to a refund in these circumstances, and strictly you shouldn't have to way for the shipping company and the seller to resolve the matter between them.

I booked a course 2 months ago online, which takes place in 6 days. It is a 2 day course to be attended in person at a cost of £500. There were no T&Cs with regards to cancellation policy provided on the website or confirmation email. Due to family circumstances, I have had to cancel. I have just been informed that they will not give a refund as the course is fully booked and they have paid for 'resources' in advance. Are they right or should I be entitled to a refund?

What is the subject matter of the course? Is it a business / professional course of some kind?

Were there any T&Cs at all?

Hi there, I realise this article has been superseded by the Consumer Contracts regulations, but I would appreciate some advice.  I signed up for a 7 day free trial for a job board so that I could apply for a job through the board, but intended to cancel within the trial period.  Having recently moved and having a lot of other things on my mind, I forgot.  My mistake, my fault.  Then I got an email saying I'd been charged nearly £90 for a years subscription.  I immediately responded, pleading poverty (which is true - I really can't afford that amount) and asking nicely for a refund, but was refused.  I asked why they weren't required to have a 14 day cooling off period as per the Consumer Contract regulations and they replied "I can confirm that jobs board businesses such as ourselves do not fall under the regulations that you are referring to." Is this true?  I can't find any reason that they would not be covered.  They are selling a service, at a distance, to consumers.  Any thoughts?

I'm not sure whether jobseekers count as consumers for the purposes of the CCRs:

“consumer” means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession

On the face of it, this would seem to exclude jobseekers, but on the other hand the courts may try to interpret the definition to cover jobseekers. They could do this by arguing that, whilst finding a new job is related to the individual's trade etc, it is not an action taken for purposes that are "within" (vs "outside") that trade etc. I'm not aware of any case law on this point.

It is also possible that some jobseekers are consumers and others are not.

Thanks for the reply Alasdair.  I can totally see how a freelancer looking for freelance jobs would be classed as acting within that individual’s trade, business, craft or profession - finding new clients is part of a freelancer's job.  And freelancers certainly make up a proportion of this job board's customer base. 

Those who are looking for a new full time job, though, do seem to fulfil the requirements of being a consumer (in my opinion).  Looking for a job isn't my trade, business or profession.  

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