Consumer rights have been beefed up considerably in the last 20 years with an increasing awareness of consumers of consumer laws and the increasing use of the internet for purchasing many products.
You don’t have to put up with shabby treatment when you are a consumer.
This change in consumer behaviour has been reflected in new European consumer laws which have strengthened consumer legislation such as the Sale of Goods and Supply of services acts.
Consumer rights have traditionally been grounded in this legislation but Europe has brought in much consumer law which can also provide relief for the consumer who feels ripped off.
Consumer awareness has grown considerably in terms of consumer laws and rights but the raft of European consumer laws has made it a difficult task to understand precisely where you stand, particularly since your consumer rights vary whether you are purchasing online or off line in a traditional shop or store.
Consumer complaints have increased greatly with an increasing consumer awareness and the proliferation of consumer groups and in Ireland the Consumer Association is a good source of information if you think your consumer rights have been ignored.
Consumer Rights
Consumer rights in relation to online purchasing can be stronger than their offline rights on some occasions. And consumer behaviour has trended towards an increasing use of the internet for their purchasing needs.
For example the 7 day cooling off period that a consumer has under EU law which allows the consumer to return goods in some situations…even where the goods are perfect.
Consumer awareness is important to ensure that their consumer rights are not trampled on and it can be difficult to know what your rights are with the huge proliferation of consumer law.
The Consumer Protection Act 2007(CPA) established the National Consumer Agency (NCA) and updated much existing consumer legislation.
It also introduced EU legislation into Irish law including one on Unfair Commercial Practices. The NCA has extensive powers to protect consumers and enforce relevant consumer law.
It refers cases to the DPP where appropriate and investigates suspected offences where there are consumer complaints and is a good source of consumer advice.
Unfair Practices
The Consumer Protection Act 2007 deals with commercial practices and sect. 41 states that ‘a trader shall not engage in an unfair commercial practice’.
The National Consumer Agency state that commercial practice is unfair when breach of good faith occurs and the average consumer is denied the reasonable standard of skill and care to which he is entitled. Under the CPA 2007 and the Unfair Commercial Practices directive there are 3 kinds of unfair commercial practices
1. Misleading practices (provision of false information which would be likely to lead to the consumer making a decision he would not otherwise make) This would include misleading information about the nature of the product, price, servicing, replacement, legal rights of the consumer)
2. Aggressive practices (harassment/coercion of the consumer causing them to make a decision they would not otherwise make
3. Prohibited practices (this is a ‘black list’ and includes claims of trader that he is a member of a particular body when he is not, claims that he is about to cease trading, claiming that a product can cure an illness when it can not or that a product is only available for a limited time when it is untrue)
A trader found guilty of these offences can face stiff penalties.
Enforcement and penalties
The National Consumer Agency (NCA) has extensive powers to prosecute traders.
The consumer can also bring a civil action for damages.
Sale of goods and Supply of Services Act 1980 (SGSSA)
The protection afforded by the Sale of Goods and Supply of Services Act, 1980 for the consumer really comes from the implied terms it inserts into every contract where the sale of goods occurs to a consumer.
Sale of Goods
Implied Terms
These implied terms are (section 10 Sale of Goods and Supply of Services Act 1980)
- The seller’s right to transfer ownership (if goods sold turn out to be stolen the buyer would be entitled to a refund)
- The goods shall correspond with their description
- The goods shall be of merchantable quality except where defects were brought to the buyer’s attention or defects should have been noticed on examination before the contract was made.‘Merchantable quality’ are essentially goods which are fit for the purpose intended.
Fitness for purpose
There is an implied term that the goods are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied except where the circumstances show that the consumer does not rely on the seller’s skill or judgment.
Sale by Sample
Where the contract is one by sample provided to the consumer then there is an implied term from SGSSA 1980 that the bulk will correspond with the sample in quality.
Exclusion clauses
In a contract for sale of goods, any term excluding the implied terms will be void where the buyer acts as a consumer.
Where the buyer is not acting as consumer then there can only be an exclusion where it is fair and reasonable.
Supply of services
The Sale of Goods and Supply of Services Act, 1980 implied terms are
- The supplier has the necessary skill to supply the service
- He will provide the service with skill and diligence
- Materials used will be sound and reasonably fit for their purpose
- Where goods are supplied under the contract they will be of merchantable quality
Exclusion/variation
Where the recipient is a consumer the implied terms can only be excluded where it is fair and reasonable to do so and only if the exclusion is brought to the attention of the consumer.
Where the recipient is not a consumer then the exclusion clause can be used by a course of dealing between the parties or by usage.
European Communities (Misleading Advertising) Regulations,1988
These regulations give any person or the Director of the National Consumer Agency the power to request any person engaged in misleading advertising to discontinue.
Any person may apply to High Court for an order prohibiting the publication and that person need not prove actual loss or damage or recklessness or negligence on the advertiser’s behalf.
Read European Communities (Misleading Advertising) Regulations, 1988.
European Communities (Cancellation of Contracts Negotiated Away From Business Premises) Regulations, 1989
These regulations apply where contracts are negotiated away from business premises.
The consumer must be given a 7 day cooling off period within which he may withdraw without penalty.
The consumer must be given a statutory cancellation notice and cancellation form at the point of sale or the contract will not be enforceable against him.
Liability for Defective Products Act, 1991
This act imposes strict liability on the producer for damage caused by a defect in the product.
The consumer does not need to show negligence or fault on the producer’s part.
A producer in this context includes manufacturers, importers and suppliers.
‘Damage’ is death or personal injury of loss of or damage to any property other than the defective product itself.
‘Defective Product’ is a product which fails to provide the safety which a person is entitled to expect.
The user must prove the damage, the defect and the causal relationship between the defect and the damage.
Liability for Defective Products Act, 1991.
Defences
1) Producer did not put it into circulation
2) Defect did not exist when put into circulation
3) State of knowledge at the time made it impossible to know about the defect
Limitation of Actions
An action may not be brought after 3 years from when the consumer knew of the damage, defect and identity of the producer.
Prohibition on exclusion clauses
A producer can not contract out of his liability under this act.
European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000
The aim of these regulations is to protect consumers where the terms have not been individually negotiated and are unfair.
Exclusions
They do not apply to
- Contracts of employment
- Contracts relating to Succession rights and rights under family law
- Core terms of the contract are excluded(they must have been drafted in plain language)
The directive itself lists a non exhaustive list of terms which may be regarded as unfair.
Severance
An unfair term will not be binding on the consumer but the contract itself will continue to bind the parties if it is capable of continuing without the unfair term.
The NCA can enforce these regulations as well as the consumer.
S.I. No. 27/1995 – European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995
Consumer Credit Act, 1995
This act applies to all credit agreements to which a consumer is a party.
Marketing
Any ad must contain a clear and prominent statement of the Annual Percentage Rate (APR) and consumer credit arranagements must contain
- A statement of any security which may be required
- A clear indication of any restrictions on the availability of credit
- Details of any additional charges
Minors
A company may not send any document to a minor inviting him to borrow credit.
Exclusions
Credit providers can not seek to exclude the consumer’s rights.
Package Holiday and Travel Trade Act, 1995
This act imposes direct liability on the organiser of a holiday for the non-performance of improper performance of the obligations under the holiday contract regardless of whether they are to be performed by the organiser or another party.
An organiser is a person who organises packages and sells them to the public.
Holiday brochure
An organiser must not make available to the public a brochure unless it indicates legibly and comprehensibly and accurately the price and all the details about meals, transport, type of accommodation etc.
Both the organiser and retailer can be held liable to compensate a consumer for any damage resulting from false and misleading information in the brochure.
There is a duty on the organiser, before a contract is made, to provide intending consumers with information in writing about all essential matters to do with the package.
There is a further duty on the organiser before the package starts to provide further information about the holiday and where an organiser fails to do so he will be guilty of an offence.
Form of the contract
The organiser must supply the consumer with a written copy of the terms of the contract.
Alterations and cancellations
The consumer is allowed to withdraw from the contract where the organiser is compelled to change an essential term of the contract such as the price.
Where this occurs the consumer may obtain a full refund or take a replacement package of equivalent or superior quality.
Problems after start of package
Where a significant portion of the services contracted for is not provided there is an implied term that the organiser must make suitable alternative arrangements at no extra cost.
Limitation clauses
An organiser can not contract out of his obligations to the consumer but he can limit his liability to not less than twice the cost of the package holiday where he has inserted this term in to the contract.
The Unfair Terms in Consumer Contracts 1995 can provide additional protection to the holidaymaker.
Package Holidays and Travel Trade Act, 1995
European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003
The principle behind this is that consumers from one jurisdiction should be able to purchase goods in another European jurisdiction based on uniform and minimum set of fair rules governing their sale.
These regulations entitle the consumer to have the defective product replaced, repaired or be refunded.
S.I. No. 199/2004 – European Communities (General Product Safety) Regulations 2004
These regulations demand that consumer products placed on the market are safe and oblige producers to place only safe products on the market.
The NCA has the power to enforce them.These regulations do not apply to second hand products or products to be repaired or reconditioned.
Conclusion
A consumer has significant protection thanks to our historical statutory protection but this has been enormously enhanced in the last few years thanks to EU law. You might also be interested in..