Kerman & Co

DISTANCE SELLING REGULATIONS

The Consumer Protection (Distance Selling) Regulations 2000 ("the Regulations") came into force in the UK on 31 October 2000. These regulations govern contracts concluded at a distance between suppliers and consumers (b2c). This includes contracts formed over the internet, by telephone, over the radio or by mail order. Contracts concluded between businesses are not governed by these regulations.

OBLIGATIONS OF SUPPLIERS

1. INFORMATION

Information to be provided

The supplier is obliged to make available to the consumer certain information. The information must be communicated clearly and in a medium that is appropriate to the means of distance communication that was used by the customer to contact the supplier.

The information that should be communicated is as follows:

•	name and address of supplier;
•	reference number of supplier/trader or some other way of identifying the contract;
•	main characteristics of the goods or services;
•	price of goods or services (including taxes and delivery costs);
•	arrangements for payment, delivery or performance;
•	a statement of the right to cancel or withdraw the contract;
•	how to exercise the right to withdraw the contract;
•	period for which the price or offer is valid;
•	where good or services are to be provided permanently or recurrently, the minimum duration of the contract;
•	information about after-sales and guarantees;
•	information about providing substitute goods;
•	information that the cost of returning the substitute goods will be met by the supplier;
•	* a notice that the consumer must keep the goods safe until they are returned (within 21 days of cancellation) after that he does not have to.
*	advisable but not obligatory.

Written Confirmation of Information

Suppliers must provide a written confirmation of the above information to the consumer in good time during or before the performance of the contract. In any event, the written confirmation must be given to the consumer within a three month period beginning on the day that the goods are delivered (or, for services, the date of conclusion of the contract).

The DTI has indicated that if the consumer contacted the supplier by email, then email would be an acceptable way to provide such written confirmation. The consumer could be required to print off or download the information before concluding the contract and confirm that they have done so, or the supplier could send a hard copy to the consumer in the post.

2. PERFORMANCE OF THE CONTRACT

Unless the parties agree to the alternative, the supplier shall perform the contract within a maximum of 30 days beginning with the date of the order. If goods are not available, the supplier must inform the consumer and reimburse any sum already paid. This reimbursement must be made as soon as possible and in any event within 30 days after the date on which the period for performance expired.

3. RIGHT TO CANCEL THE CONTRACT

A consumer has the right to cancel the contract for whatever reason within seven working days ("cooling off" period) from the date that the consumer received the goods (or, for services, the date of conclusion of the contract) or from the date the written confirmation is provided if later (as long as it is provided within 3 months).

Excluded Contracts

There are exclusions for contracts of certain types of goods and services where the consumer will not automatically have the right to cancel the contract. For example, contracts for the supply of services where performance has already started with the consent of the consumer, contracts for customised goods or those which deteriorate rapidly and contracts for the supply of video or audio recordings or computer software that is unsealed by the consumer.

4. IMPLICATIONS OF CANCELLATION

If the consumer cancels his order in the manner described above, the supplier is obliged to re-imburse him as soon as possible. In any event, this refund must be made within 30 days of the notice of cancellation, without any charge other than the direct cost of returning the goods. If payment is not made within 30 days, the supplier will have committed a criminal offence punishable by a fine.

5. CONSUMERS RIGHT TO RETAIN GOODS

A consumer can retain the goods upon cancellation until he receives the refund. He is under a duty to retain possession of the goods and ensure that reasonable care is taken of them. The consumer is not obliged to return the goods unless asked to do so in writing by the supplier. If the supplier fails to supply such notification within a 21 day period from the date that the cancellation notice was given, then the consumer is no longer under a duty to take reasonable care of the goods. If during this period the consumer unreasonably refuses or fails to comply with the request, his duty to retain possession and take reasonable care of the goods will continue until he delivers or sends the goods to the supplier.

Where the consumer returns the goods by post, he is under a duty to take reasonable care to see that they are received and not damaged in transit. If he delivers the goods personally to the supplier, his obligation to take care of the goods shall cease.

6. EXEMPTED CONTRACTS

Some contracts are not caught by the regulations at all. For example, contracts relating to:

6.1 The sale and purchase of land;

6.2 Financial services; and

6.3 Vending machines.

7. FAILURE TO COMPLY WITH THE REGULATIONS
Suppliers and consumers are not permitted to contract out of the regulations. The Director of Fair Trading is responsible for enforcing the regulations and it is thought that this will be done by investigating complaints and granting injunctions where necessary.

For Further Information Contact:

Richard Stanton-Reid at [email protected]