(a) shows that the digital environment of the consumer is not compatible with the technical requirements of the digital content or digital service, and (b) informed the consumer of such requirements in a clear and comprehensible manner before the conclusion of the contract.
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(5)Subject to subsection (6), the consumer shall co-operate with the trader, to the extent reasonably possible and necessary, to ascertain whether the cause of the lack of conformity with the digital content contract or digital service contract of the digital content or digital service at the times specified in section 58
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(1)to (4) lay in the consumer’s digital environment.
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(6)The obligation on the consumer to co-operate under subsection (5) shall be limited to the technically available means which are least intrusive for the consumer.
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(7)Where— (a) the consumer fails to co-operate as required by subsection (5), and (b) the trader informed the consumer of the technical requirements of the digital content or digital service in a clear and comprehensible manner before the conclusion of the digital content contract or digital service contract, the burden of proof as to whether the lack of conformity with the contract existed at the times specified in section 58
\n
(1)to (4) shall be on the consumer.
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(8)Nothing in this section shall prevent or restrict a consumer from exercising a remedy after the expiry of the period of 12 months beginning with the date of supply of the digital content or digital service.
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Chapter 3
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Consumer remedies in digital content contracts and digital service contracts Remedy for failure to supply digital content or digital service 60. (1) Where a trader— (a) fails to supply digital content or a digital service under a digital content contract or digital service contract in accordance with section 51 , and (b) fails to comply with a subsequent request from a consumer to supply the digital content or digital service without undue delay or within such additional period as may be expressly agreed between the parties, the consumer shall have the right to terminate the digital content contract or digital service contract.
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(2)Subsection (1) shall not apply, and the consumer shall have the right to terminate the contract immediately (and without making a request referred to in subsection (1)(b)), where— (a) the trader has declared that the trader will not supply the digital content or digital service or it is equally clear from the circumstances that the trader will not do so, or (b) the consumer and the trader have agreed, or it is apparent from the circumstances at the time of the conclusion of the contract, that it is essential for the consumer that the digital content or digital service be supplied before a particular date and time and the trader fails to supply the digital content or digital service on or before that date and time.
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(3)Where the consumer has the right to terminate the digital content contract or digital service contract under subsection (1) or (2) and wishes to exercise that right— (a) the consumer shall exercise that right in accordance with section 66 , and (b) the trader shall comply with the obligations in section 67 .
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Right to have digital content or digital service brought into conformity with contract 61. (1) Subject to subsection (2), where digital content or a digital service is not in conformity with the digital content contract or digital service contract, the consumer shall have the right to have the digital content or digital service brought into conformity with the contract in accordance with subsection (3).
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(2)Subsection (1) shall not apply where— (a) it would be impossible to bring the digital content or digital service into conformity with the digital content contract or digital service contract, or (b) bringing the digital content or digital service into conformity with the digital content contract or digital service contract would impose disproportionate costs on the trader taking into account all the circumstances of the case including in particular— (i) the value that the digital content or digital service would have if there were no lack of conformity, and (ii) the significance of the lack of conformity.
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(3)The trader shall bring the digital content or digital service into conformity with the digital content contract or digital service contract— (a) free of charge, (b) within a reasonable time after being informed by the consumer of the lack of conformity with the digital content contract or digital service contract, and (c) without significant inconvenience to the consumer, taking account of the nature of the digital content or digital service and the purpose for which the consumer required the digital content or digital service.
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(4)The reasonable time for bringing the digital content or digital service into conformity with the contract under subsection (3)(b) shall be the shortest possible time necessary for remedying the lack of conformity of the digital content or digital service with the contract, having regard to— (a) the nature and complexity of the digital content or digital service, (b) the nature and severity of the lack of conformity, and (c) the effort needed to bring the digital content or digital service into conformity with the digital content contract or digital service contract.
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Right to proportionate reduction in price or termination of contract 62. (1) This section applies where— (a) by virtue of section 61
\n
(2), the consumer does not have the right specified in section 61
\n
(1), (b) the consumer has exercised his or her right under section 61
\n
(1)and the trader has not brought the digital content or digital service into conformity with the digital content contract or digital service contract in accordance with section 61
\n
(3), (c) the same or a different lack of conformity appears despite the trader’s attempt to bring the digital content or digital service into conformity with the digital content contract or digital service contract, (d) the lack of conformity is of such a serious nature as to justify an immediate reduction in the price or termination of the digital content contract or digital service contract, or (e) the trader has declared, or it is clear from the circumstances, that the trader will not bring the digital content or digital service into conformity with the digital content contract or digital service contract within a reasonable time or without significant inconvenience for the consumer.
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(2)If under the digital content contract or digital service contract the digital content or digital service is supplied for the payment of a price, the consumer shall have the right— (a) to a proportionate reduction in the price in accordance with section 63 , or (b) subject to subsection (3), to terminate the contract in accordance with section 66 .
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(3)The consumer shall have the right to terminate the contract under subsection (2) only if the lack of conformity with the contract is not minor.
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(4)If under the digital content contract or digital service contract the digital content or digital service is supplied other than for the payment of a price, the consumer shall have the right to terminate the contract in accordance with section 66 .
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(5)In determining for the purpose of subsection (1)(d) whether the lack of conformity of the digital content or digital service with the digital content contract or digital service contract is of such a serious nature as to justify an immediate reduction in the price or termination of the contract, regard shall be had to the nature and severity of the lack of conformity, including whether that lack is such that— (a) the consumer cannot maintain confidence in the ability of the trader to bring the digital content or digital service into conformity with the contract, and (b) the ability of the consumer to make normal use of the digital content or digital service is severely affected and the consumer cannot reasonably be expected to trust that it would be remedied by the trader’s attempt to bring the digital content or digital service into conformity with the contract.
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(6)In case of dispute, it shall be for the trader to show that the lack of conformity of the digital content or digital service with the digital content contract or digital service contract is minor for the purposes of subsection (3).
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Price reduction: digital content contract or digital service contract 63. (1) This section applies where the consumer has the right under section 62
\n
(2)(a) to a proportionate reduction in the price.
\n
(2)The right of the consumer under this section is the right— (a) to require the trader to reduce in accordance with subsection (3) the price that the consumer is required to pay under the digital content contract or digital service contract, or (b) to receive from the trader a reimbursement of the price paid by the consumer in excess of the amount of the reduction applicable under subsection (3).
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(3)The reduction in the price shall be proportionate to the decrease in the value of the digital content or digital service supplied to the consumer compared with the value that the digital content or digital service would have if it were in conformity with the digital content contract or digital service contract.
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(4)Where the digital content contract or digital service contract provides that the digital content or digital service shall be supplied for a period specified in the contract in exchange for the payment of a price, the reduction in price shall apply to the period during which the digital content or digital service was not in conformity with the digital content contract or digital service contract.
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(5)Where the consumer has the right to reimbursement under subsection (2)(b), the trader shall reimburse the consumer in accordance with section 68 .
\n
Modification of digital content or digital service 64. (1) Where— (a) the digital content contract or digital service contract provides that the digital content or digital service is to be supplied or made accessible to the consumer for a period specified in the contract, and (b) the conditions specified in subsection (2) are met, the trader may modify the digital content or digital service beyond what is necessary to maintain the digital content or digital service in conformity with the digital content contract or digital service contract.
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(2)The conditions referred to in subsection (1) are— (a) the digital content contract or digital service contract allows, and provides a valid reason for, such a modification, (b) such a modification is made without additional cost to the consumer, (c) the consumer is informed in a clear and comprehensible manner of the modification, and (d) the consumer is informed reasonably in advance on a durable medium of the features and time of the modification and of— (i) the right to terminate the digital content contract or digital service contract in accordance with subsection (3), or (ii) the possibility to maintain the digital content or digital service without such a modification in accordance with subsection (4)(b).
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(3)Subject to subsection (4), the consumer shall have the right to terminate the digital content contract or digital service contract free of charge if the modification of the digital content or digital service negatively affects the consumer’s access to, or use of, the digital content or digital service.
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(4)The right of the consumer to terminate the digital content contract or digital service contract under subsection (3) shall not apply if— (a) the negative effect of the modification on the consumer’s access to, or use of, the digital content or digital service is minor, or (b) the trader has enabled the consumer to maintain the unmodified digital content or digital service without additional cost, and the unmodified digital content or digital service remains in conformity with the digital content contract or digital service contract.
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(5)In objectively ascertaining the effect of the modification of the digital content or digital service on the consumer’s access to, or use of, the digital content or digital service, regard shall be had to— (a) the nature and purpose of the digital content or digital service, and (b) the quality, functionality, compatibility and other main features normally found in digital content or a digital service of the same type.
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(6)Where the consumer has the right to terminate the digital content contract or digital service contract under subsection (3) and wishes to exercise that right— (a) the consumer shall exercise the right in accordance with section 66 before the expiry of the period of 30 days beginning on whichever is the later of— (i) the day on which the consumer was informed of the modification, and (ii) the day on which the digital content or digital service was modified by the trader, and (b) the trader shall— (i) comply with the obligations under section 67 , and (ii) make any reimbursement due to the consumer in accordance with section 68 .
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(7)Where— (a) the trader has— (i) exercised the power conferred by subsection (1), and (ii) enabled the consumer to maintain the unmodified digital content or digital service, and (b) that digital content or digital service does not satisfy the requirements of sections 53 to 55 , the consumer shall be entitled to the remedies in sections 61 , 62 and 69 .
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(8)This section shall not apply where a bundle of electronic communications services or a bundle of such services and terminal equipment within the scope of Article 107 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 20188 establishing the European Electronic Communications Code (Recast) includes elements of an internet access service or a number-based interpersonal communications service.
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Remedies where contract also provides for sale of goods etc.
\n
65.(1) This section applies where digital content or a digital service is supplied to a consumer under a contract that provides also for— (a) the sale of goods, or (b) the supply of a service.
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(2)Where the conditions in subsection (3) are met, the consumer shall have the right— (a) to terminate the contract, or (b) to obtain a proportionate reduction in the price payable under the contract.
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(3)The conditions referred to in subsection (2) are the following: (a) if the contract were a contract for the supply of digital content or a digital service only, the consumer would have the right under section 62 to obtain a proportionate reduction in the price or to terminate the contract; (b) the value of the goods or service to the consumer would be materially reduced in the absence of the digital content or digital service.
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(4)In objectively determining for the purposes of subsection (2)(b) whether a reduction in the value of goods or a service is material, all the circumstances shall be taken into account, including in particular— (a) the nature and purpose of the contract, (b) the relative value of the different elements of the contract, and (c) the nature and degree of the inter-dependence of the different elements of the contract.
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(5)Where the consumer exercises the right to terminate a contract under subsection (2)— (a) the consumer shall comply with the obligations in section 66
\n
(3)and (4), and (b) the trader with whom the consumer has that contract shall comply with the obligations in section 67 .
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(6)This section shall not apply where a bundle of electronic communications services or a bundle of such services and terminal equipment within the scope of Article 107 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 20189 establishing the European Electronic Communications Code (Recast) includes elements of an internet access service or a number-based interpersonal communications service.
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Obligations of consumer in event of termination of digital content contract or digital service contract 66. (1) Subject to section 65
\n
(4)(a), this section applies where a consumer has the right under section 50
\n
(2), 60
\n
(1)or (2), 62
\n
(2)(b) or 64
\n
(3)to terminate a digital content contract or digital service contract.
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(2)The consumer shall exercise the right to terminate a digital content contract or digital service contract by means of a statement to the trader expressing the decision to terminate the contract.
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(3)On and after the termination of the digital content contract or digital service contract, the consumer shall not use the digital content or digital service or make it available to any third person.
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(4)Where the digital content was supplied on a tangible medium, the consumer shall, on receipt of a request from the trader under section 67
\n
(3), return the tangible medium to the trader without undue delay.
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(5)The consumer shall not be liable to pay for any use made of the digital content or digital service in the period prior to the termination of the digital content contract or digital service contract during which the digital content or the digital service was not in conformity with the contract.
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(6)If a consumer fails to comply with an obligation imposed by subsection (3) or (4), he or she shall be liable in damages for any loss or damage suffered by the trader as a result of the failure.
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(7)The consumer’s liability in damages under subsection (6) shall be without prejudice to any other remedy available under any enactment or rule of law to the trader.
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Obligations of trader where digital content contract or digital service contract terminated 67. (1) Subject to subsections (2) and (4), where the consumer exercises the right under section 50
\n
(2), 60
\n
(1)or (2), 62
\n
(2)(b) or 64
\n
(3)to terminate a digital content contract or digital service contract, the trader shall reimburse the consumer in accordance with section 68 for all payments made under the contract.
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(2)Where the digital content contract or digital service contract provides for the supply of the digital content or digital service for a period specified in the contract in exchange for the payment of a price and the digital content or digital service was in conformity with the digital content contract or digital service contract for a period prior to the termination of the contract, the trader shall reimburse the consumer only for— (a) the proportionate part of the price paid corresponding to the period of time during which the digital content or digital service was not in conformity with the contract, and (b) any part of the price paid by the consumer in advance for any period of the contract that would have remained had the contract not been terminated.
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(3)Where the consumer terminates a digital content contract or digital service contract under which digital content was supplied on a tangible medium, the trader may request that the consumer return the tangible medium to the trader without undue delay.
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(4)Where the trader makes a request under subsection (3)— (a) the request shall be made within 14 days of the day on which the trader was informed of the consumer’s decision to terminate the contract, and (b) the trader shall be liable for the cost of returning the tangible medium.
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(5)Subject to subsection (6), the trader shall not use any content that was provided or created by the consumer when using the digital content or digital service supplied by the trader under the digital content contract or digital service contract.
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(6)The trader may use content such as is referred to in subsection (5) where the content is not personal data and the content— (a) has no utility outside the context of the digital content or digital service supplied by the trader, (b) relates only to the consumer’s activity when using the digital content or digital service supplied by the trader, (c) has been aggregated with other data by the trader and cannot be disaggregated or can be disaggregated only with disproportionate effort, or (d) has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.
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(7)Subject to subsection (8), the trader shall, at the request of the consumer, make available to the consumer any content (other than personal data), which was provided or created by the consumer when using the digital content or digital service supplied by the trader under the digital content contract or digital service contract.
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(8)The trader need not make available any content which falls within any of paragraphs (a) to (c) of subsection (6).
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(9)The consumer shall be entitled to retrieve the digital content made available to him or her in accordance with subsection (7)— (a) free of charge, (b) without hindrance from the trader, (c) within a reasonable time, and (d) in a commonly used and machine-readable format.
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(10)Without prejudice to subsections (7) and (8), the trader may prevent any further use of the digital content or digital service by the consumer, in particular by making the digital content or digital service inaccessible to the consumer or disabling the user account of the consumer.
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Time limits and means of reimbursement by trader: digital content contract or digital service contract 68. (1) Subject to subsection (2), where the trader is required by section 63
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(5), 64
\n
(6)(b)(ii) or 67
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(1)to reimburse the consumer, the trader shall carry out the reimbursement— (a) without undue delay and in any event before the expiry of the period of 14 days beginning on the date on which the trader was informed of the consumer’s decision to exercise the right to a price reduction or to terminate the digital content contract or digital service contract, (b) using the same means of payment as the consumer used to pay for the digital content or digital service, unless the consumer expressly agrees otherwise and provided that the consumer does not incur any fees as a result of such reimbursement, and (c) without the imposition of any fee on the consumer in respect of the reimbursement.
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(2)Where the reimbursement relates to digital content supplied on a tangible medium, the trader may withhold the reimbursement until the trader has received— (a) the tangible medium back, or (b) if the trader so chooses, evidence provided by the consumer of having returned the tangible medium.
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(3)If a trader fails to comply with the obligation to reimburse the consumer in accordance with this section, the trader shall be liable in damages for any loss or damage suffered by the consumer as a result of the failure.
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General right to withhold payment digital content contract or digital service contract 69. (1) Subject to subsection (2), where the trader fails to comply with the obligation to supply digital content or a digital service that is in conformity with the digital content contract or digital service contract, the consumer shall have the right to withhold payment of any outstanding part of the price until the trader has fulfilled the trader’s obligation to supply digital content or a digital service that is in conformity with the digital content contract or digital service contract.
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(2)The part of the price withheld by the consumer under subsection (1) shall be proportionate to the decrease in the value of the digital content or digital service received by the consumer compared with the value that the digital content or digital service would have if it were in conformity with the contract.
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(3)The consumer shall exercise the right to withhold payment under subsection (1) by means of a statement to the trader expressing the consumer’s decision to withhold payment until the trader has fulfilled the trader’s obligation to supply digital content or a digital service that is in conformity with the digital content contract or digital service contract.
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Effect of termination of digital content contract or digital service contract on ancillary contract 70. (1) Where a consumer terminates a digital content contract or digital service contract in accordance with section 66 , any ancillary contract shall be automatically terminated without any cost to the consumer.
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(2)Where a trader is informed by a consumer in accordance with section 66 of the consumer’s decision to terminate a digital content contract or digital service contract, the trader shall inform any other trader with whom the consumer has an ancillary contract of its termination by subsection (1).
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(3)Where an ancillary contract is terminated by subsection (1)— (a) the trader with whom the consumer has that contract shall comply with the obligations in section 67 , and (b) the consumer shall comply with the obligations in section 66
\n
(3)and (4).
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(4)Where any security has been provided under an ancillary contract that is terminated by subsection (1), it is to be treated as never having had effect and any property lodged with the trader or a person other than the trader (a “third party”) solely for the purposes of that security shall be returned immediately by the trader or third party.
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(5)In this section, “ancillary contract”, in relation to a digital content contract or digital service contract concluded between a consumer and a trader (in this subsection referred to as the “principal contract”), means another contract concluded between that consumer and that trader, or that consumer and a third party, under which— (a) the trader, or (b) in pursuance of arrangements made between the trader and a third party, the third party, supplies to the consumer goods, digital content, a digital service or a service related to the principal contract.
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Exclusion or limitation of liability of trader (Part 3) 71. (1) A term of a digital content contract or a digital service contract, or of any other contract between a consumer and a trader, shall not exclude or restrict the trader’s liability under any of the following provisions: (a) section 50 (right to supply digital content or digital service); (b) section 51 (duty to supply digital content or digital service); (c) section 52 (digital content or digital service to be in conformity with digital content contract or digital service contract); (d) section 53 (subjective requirements for conformity with digital content contract or digital service contract); (e) section 54 (objective requirements for conformity with digital content contract or digital service contract); (f) section 55 (incorrect integration of digital content or digital service); (g) section 56 (implied terms of digital content contract or digital service contract); (h) section 57 (third party rights); (i) section 58 (liability of trader under digital content contract or digital service contract); (j) section 59 (burden of proof under digital content contract or digital service contract).
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(2)A term of a digital content contract or a digital service contract, or of any other contract between a consumer and a trader, which purports to, or has the effect of, excluding or restricting the liability of the trader under any of the provisions specified in subsection (1) shall not be binding on the consumer.
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(3)The references in subsections (1) and (2) to excluding or restricting the trader’s liability include a reference to— (a) excluding or limiting a right or remedy in respect of a liability under a provision specified in subsection (1), (b) making such a right or remedy, or its enforcement, subject to a restrictive or onerous condition, (c) allowing a trader to put a person at a disadvantage as a result of pursuing such a right or remedy, (d) excluding or restricting rules of evidence or procedure, or (e) preventing an obligation arising or limiting its extent.
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(4)An agreement in writing to submit present or future disputes to an ADR procedure within the meaning of the European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015 ( S.I. No. 343 of 2015 ) is not to be regarded as excluding or restricting any liability for the purposes of this section.
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(5)A trader who contravenes subsection (1) commits an offence.
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Right of redress of trader (Part 3) 72. Where the trader is liable to the consumer because of— (a) any failure to supply the digital content or digital service under a digital content contract or digital service contract in accordance with section 51 , or (b) a lack of conformity of the digital content or digital service with the digital content contract or digital service contract, resulting from an act or omission of a person constituting a previous link in the chain of transactions relating to the digital content contract or digital service contract, the trader shall be entitled to pursue remedies against the person in the chain of transactions liable for the failure or, as the case may be, lack of conformity.
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Other remedies 73. (1) The remedies provided for in this Chapter do not affect the right of the consumer to pursue other remedies (without recovering twice for the same loss) where digital content or a digital service is not in conformity with the digital content contract or digital service contract or the trader otherwise fails to comply with the requirements of this Part.
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(2)The other remedies referred to in subsection (1) include in particular any of the following remedies that may be available to the consumer: (a) claiming damages; (b) relying on the failure of the trader to comply with the requirements of this Part against a claim under the digital content contract or digital service contract by the trader for payment of the price; (c) seeking to recover money paid to the trader for digital content or a digital service that does not comply with the requirements of this Part; (d) having a lack of conformity of the digital content or digital service with the digital content contract or digital service contract remedied elsewhere and recovering from the trader all reasonable costs incurred in having the lack of conformity so remedied.
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PART 4
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Service contracts
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Chapter 1
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Interpretation and application (Part 4) Interpretation (Part 4) 74. (1) In this Part— “consumer-hire agreement” has the same meaning as it has in the Act of 1995; “free of charge” means free of any costs necessarily incurred in remedying the lack of conformity of a service with the service contract, including the cost of labour and materials; “hire-purchase agreement” has the same meaning as it has in the Act of 1995.
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(2)A reference in this Part to a service being in conformity with a service contract is to be construed in accordance with section 79
\n
(2).
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Application (Part 4) 75. (1) Subject to subsection (3) and sections 80
\n
(1), 86
\n
(1)(g), 88 and 92 to 94 , this Part applies to any contract specified in subsection (2) that is concluded between a trader and a consumer on or after the day on which this section comes into operation.
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(2)The contracts referred to in subsection (1) are— (a) a service contract, and (b) where a single contract between a trader and a consumer relates to the supply of a service and— (i) the sale of goods, (ii) the supply of digital content, or (iii) the supply of a digital service, that contract but only in so far as it relates to the supply of the service.
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(3)This Part does not apply to— (a) a contract for rental of accommodation for residential purposes concluded between a trader and a consumer, or (b) goods supplied under a consumer-hire agreement or a hire-purchase agreement.
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(4)A reference in Chapter 2 or 3 of this Part to a service contract shall be construed as a reference to any contract to which this Part applies.
\n
(5)Nothing in this Part shall affect the entitlement of a consumer to terminate a contract under section 29
\n
(1)or 65
\n
(2).
\n
Power of Minister to restrict or extend application of Part 4 76. (1) Subject to section 75 and subsection (3), the Minister may by regulations provide that this Part or any provision of this Part specified in the regulations— (a) shall not apply to a class or description of service so specified, or (b) shall apply to a class or description of service so specified but only in the circumstances so specified.
\n
(2)Subject to section 75 and subsection (3), the Minister may by regulations provide for the application of this Part to the following class of contract, namely a contract between a trader and a consumer for the supply of a service under which the consumer— (a) does not pay or undertake to pay the price of the service, and (b) provides or undertakes to provide personal data to the trader, other than where the personal data are processed by the trader in accordance with this Part or for the purpose only of complying with any other legal requirement to which the trader is subject.
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(3)The Minister may make regulations under subsection (1) only where the Minister is satisfied, after consultation with such persons as the Minister considers appropriate, that such regulations would be in the interests of consumer protection and fair competition.
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(4)The Minister may make regulations under subsection (2) only where the Minister is satisfied, after consultation with such persons as the Minister considers appropriate, that— (a) contracts of the class proposed to be specified in regulations under subsection (2) are being concluded on a significant scale, and (b) the regulation of that class of contract would be in the interests of consumer protection and fair competition.
\n
(5)Regulations under subsection (1) or (2) may provide that the application of this Part to the class or description of service referred to in subsection (1) or, as the case may be, the class of contract referred to in subsection (2), and specified in the regulations, shall be subject to such modifications as may be so specified.
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Effect of Part on other enactments etc.
\n
77.(1) Nothing in this Part affects any enactment or rule of law that imposes additional or stricter obligations on a trader in relation to the supply of a service.
\n
(2)This Part is subject to— (a) any other enactment, and (b) any international convention to which the State or the European Union is party, that defines or limits the rights, obligations or liabilities arising in relation to a service.
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Chapter 2
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Consumer rights in service contracts Supply of service 78. (1) Where a service contract is concluded between a trader and a consumer, the trader shall supply the service to the consumer in accordance with the contract.
\n
(2)Subject to subsections (3) to (5), the trader shall supply the service— (a) where the service contract is a distance contract or an off-premises contract— (i) at such time, or within such period, as may be specified in the information provided to the consumer under section 103 , 104 or 106 , or (ii) where no time or period is so specified, at such time, or within such period, as may be agreed between the trader and the consumer, and (b) where the service contract is not a distance contract or an off-premises contract, at such time, or within such period, as may be agreed between the trader and the consumer.
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(3)Where no time or period is specified or agreed as mentioned in subsection (2), the trader shall supply the service within a reasonable time following the conclusion of the service contract.
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(4)Where a service contract provides for the continuous supply of the service for a period specified in the contract, the trader shall supply the service to the consumer during that period.
\n
(5)Where a service contract provides for the supply of the service on more than one occasion during the period for which the contract subsists, the trader shall supply the service to the consumer on each of those occasions.
\n
(6)Subject to subsection (7), if the trader fails to supply the service to the consumer in accordance with this section, the consumer shall have the right to the remedies specified in sections 84 and 91 .
\n
(7)If there is a short-term interruption of the supply of the service that is more than negligible or that recurs— (a) section 84 shall not apply, (b) the service shall be deemed not to be in conformity with the service contract, and (c) the consumer shall have the right to the remedies specified in sections 85 , 86 and 91 .
\n
(8)For the purposes of subsection (3), whether a service has been supplied within a reasonable time following the conclusion of a service contract is a question of fact.
\n
Service to be in conformity with service contract 79. (1) Where a service contract is concluded, the trader shall supply a service to the consumer that is in conformity with the service contract.
\n
(2)A service is in conformity with the service contract if it complies with the requirements specified in sections 80 and 81 .
\n
(3)Where the service supplied by the trader is not in conformity with the service contract, the consumer shall have the right to the remedies specified in Chapter 3 of this Part.
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Subjective requirements for conformity with service contract 80. (1) The service supplied under a service contract and any goods or digital content produced by or resulting from the service, shall— (a) comply with the terms of the service contract agreed between the trader and the consumer, (b) subject to subsection (2), comply with any oral or written statement to the consumer by or on behalf of the trader in relation to the service or the trader on which the consumer relied when— (i) deciding to enter into the service contract, or (ii) making any decision in relation to the service after entering into the service contract, (c) be reasonably fit for any purpose— (i) that the consumer made known to the trader at the time of, or before, the conclusion of the service contract, and (ii) that the trader has accepted, (d) be of a nature and quality that can reasonably be expected to achieve any result— (i) that the consumer made known to the trader at the time of, or before, the conclusion of the service contract, and (ii) that the trader has accepted, and (e) where the service contract is a distance contract or an off-premises contract, comply with any additional terms imposed by virtue of section 103 , 104 or 106 .
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(2)The meaning and effect of any oral or written statement of the kind referred to in subsection (1)(b) is subject to— (a) any oral or written statement made to the consumer by the trader on the same occasion which qualified that statement, and (b) any change to that statement subsequently agreed between the consumer and the trader.
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(3)Where a service contract provides for the continuous supply of a service for a period specified in the contract, the trader shall ensure that the service complies with the requirements of subsection (1) during that period.
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(4)Where a service contract provides for the supply of a service on more than one occasion during the period for which the contract subsists, the trader shall ensure that the service complies with the requirements of subsection (1) on each of those occasions.
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(5)In case of dispute, it shall be for the trader to show that— (a) the trader did not accept a purpose relating to the service of the kind referred to in subsection (1)(c), and (b) the trader did not accept a result relating to the service of the kind referred to in subsection (1)(d).
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Objective requirements for conformity with service contract 81. (1) The following requirements shall apply in relation to a service contract— (a) the trader shall have the necessary skill to supply the service, (b) the trader shall supply the service with reasonable care and skill, (c) the trader shall supply the service in accordance with any applicable laws, (d) any materials used in the supply of the service shall be sound, reasonably fit for the purpose for which they are supplied, and correspond to any description provided by the trader, and (e) the service shall comply with any public statement in relation to the service made by, or on behalf of, the trader or any other person constituting a previous link in the chain of transactions relating to the service contract, particularly in advertising, unless the trader shows that— (i) the trader was not, and could not reasonably have been, aware of the public statement in question, (ii) at the time of conclusion of the service contract, the public statement had been corrected in the same way as it had been made (or in a comparable way), or (iii) the decision of the consumer to purchase the service could not have been influenced by the public statement.
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(2)A trader who purports to supply a service to a higher standard of care and skill than that specified in subsection (1)(b) shall exercise that higher standard of care and skill in supplying the service.
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(3)Where— (a) standards of care and skill have been set by a body or a public authority in relation to the supply of a particular service by a trader, and (b) a trader is, or purports to be, a member of the professional body, the trader shall exercise those standards of care and skill in supplying the service under a service contract.
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(4)A trader who is, or purports to be, bound by a code of practice relating to the supply of a service shall abide by that code in supplying the service under a service contract.
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(5)Where a service contract provides for the continuous supply of a service for a period specified in the contract, the trader shall ensure that the service is in conformity with the contract during that period.
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(6)Where a service contract provides for the supply of a service on more than one occasion during the period for which the contract subsists, the trader shall ensure that the service is in conformity with the contract on each of those occasions.
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(7)In this section, “code of practice” means any rules or standards that are not imposed by or under an enactment which purport to govern or define the behaviour, practices or ethical standards of traders in relation to their transactions with consumers arising from the supply of a service (whether generally or in respect of a particular trade, business or profession).
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Implied terms of service contract 82.
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Sections 78
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(2)(b) to (6), 80 and 81 are implied into every service contract and shall have effect as if they were terms of such a contract.
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Reasonable price to be paid for service 83. (1) Where, in respect of a service contract— (a) the consumer has not paid the price or other consideration for the service, (b) the contract does not fix the price or other consideration for the service or provide for how it is to be fixed, and (c) the price or other consideration for the service is not fixed by— (i) an oral or written statement by or on behalf of the trader of the kind referred to in section 80
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(1)(b), (ii) where the contract is an off-premises contract, the information provided to the consumer under section 103 or 104 , or (iii) where the contract is a distance contract, the information provided to the consumer under section 106 , the price payable for the service shall be a reasonable price and no more.
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(2)What is a reasonable price for a service is a question of fact.
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Chapter 3
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Consumer remedies in service contracts Remedy for failure to supply service 84. (1) Where the trader— (a) fails to supply the service under a service contract in accordance with section 78 , and (b) fails to comply with a subsequent request from the consumer to supply the service within an additional period appropriate to the circumstances, the consumer shall have the right to terminate the service contract.
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(2)Subsection (1) shall not apply, and the consumer shall have the right to terminate the service contract immediately (and without making a request referred to in subsection (1)(b)), where— (a) the trader has declared that the trader will not supply the service or it is clear from the circumstances that the trader will not do so, (b) the supply of the service in accordance with section 78 is essential, taking into account all the relevant circumstances at the time of the conclusion of the service contract, or (c) the consumer informed the trader at the time of, or before, the conclusion of the service contract that the supply of the service on or by a specified date was essential for the consumer and the trader fails to supply the service on or by that date.
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(3)Where the consumer has the right to terminate the service contract under subsection (1) or (2) and wishes to exercise that right— (a) the consumer shall exercise that right in accordance with section 88 , and (b) the trader shall comply with the obligations in section 89 .
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Right to have service brought into conformity with service contract 85. (1) Subject to subsection (2), where a service is not in conformity with the service contract, the consumer shall have the right to have the service brought into conformity with the service contract in accordance with subsection (3).
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(2)Subsection (1) shall not apply where it would be impossible to bring the service into conformity with the service contract.
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(3)The trader shall ensure that the service is brought into conformity with the service contract— (a) free of charge, (b) within a reasonable time after being informed by the consumer of the lack of conformity with the service contract, and (c) without significant inconvenience to the consumer.
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(4)The reasonable time for bringing the service into conformity with the service contract under subsection (3)(a) shall be the shortest possible time necessary for remedying the lack of conformity of the service with the service contract, having regard to— (a) the nature and complexity of the service, (b) the nature and severity of the lack of conformity with the service contract, and (c) the effort needed to bring the service into conformity with the service contract.
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(5)In objectively determining what is a significant inconvenience to the consumer for the purposes of subsection (3)(c), regard shall be had to— (a) the nature of the service, (b) the purpose for which it is required by the consumer, and (c) any other relevant circumstances.
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(6)Subsection (7) applies where— (a) bringing a service into conformity with a service contract requires the removal of goods that were installed in a manner consistent with their nature and purpose before the lack of conformity became apparent, or (b) goods that were installed in a manner consistent with their nature and purpose before the lack of conformity with the service contract became apparent require to be replaced.
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(7)The trader’s obligation to bring the service into conformity with the service contract shall include— (a) the removal of the goods and— (i) their repair and reinstallation, or (ii) the installation of goods in place of them, or (b) bearing the costs incurred under paragraph (a).
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Right to proportionate reduction in price or termination of service contract 86. (1) This section applies where— (a) the trader does not have the necessary skill to supply the service under a service contract, (b) as specified in section 85
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(2), it is impossible to bring the service into conformity with the service contract, (c) the trader has declared, or it is clear from the circumstances, that the trader will not bring a service into conformity with the service contract within a reasonable time, or without significant inconvenience to the consumer, (d) the trader fails to remedy a lack of conformity with a service contract within a reasonable time, without significant inconvenience to the consumer, or free of charge, (e) the same or a different lack of conformity appears despite the trader’s attempt to bring the service into conformity with the service contract, (f) the lack of conformity of a service with the service contract is of such a serious nature as to justify— (i) an immediate proportionate reduction in the price, or (ii) the termination of the service contract, or (g) the service under a service contract is unsafe or any goods produced by, or resulting from, the service or any materials used in the service are unsafe.
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(2)Subject to subsections (3) and (5), where any of the circumstances specified in subsection (1) apply, the consumer shall have the right— (a) to a proportionate reduction in the price in accordance with section 87 , or (b) to terminate the contract in accordance with section 88 .
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(3)Where subsection (1)(e) applies, the question of whether the consumer has the right to a remedy referred to in subsection (2) or shall be required to accept a further attempt (or attempts) by the trader to bring the service into conformity with the service contract shall be objectively determined by having regard to all the circumstances, including in particular— (a) the type and value of the service, (b) the nature and significance of the lack of conformity with the service contract, and (c) whether the consumer can reasonably be expected to maintain confidence in the ability of the trader to bring the service into conformity, in particular where the same lack of conformity appears more than once.
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(4)In objectively determining for the purpose of subsection (1)(f) whether the lack of conformity of the service with the service contract is of such a serious nature as to justify an immediate proportionate reduction in the price or the termination of the service contract, regard shall be had to the nature and severity of the lack of conformity, including in particular whether the lack is such that— (a) the consumer cannot reasonably be expected to maintain confidence in the ability of the trader to bring the service into conformity with the service contract, and (b) the ability of the consumer to make normal use of the service, or of any goods or digital content produced by or resulting from the service, is severely affected and the consumer cannot reasonably be expected to trust that this would be remedied by the trader.
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(5)The consumer shall have the right to terminate the service contract under subsection (2) only if the lack of conformity with the service contract is not minor.
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(6)In case of dispute, it shall be for the trader to show that the lack of conformity of the service with the service contract is minor.
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Price reduction: service contract 87. (1) This section applies where a consumer has the right under section 86
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(1)to a proportionate reduction in the price.
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(2)The right of the consumer under this section is the right— (a) to require the trader to reduce the price the consumer is required to pay under the service contract in accordance with subsection (3), or (b) to receive from the trader a reimbursement of the price paid by the consumer in the amount of the reduction applicable under subsection (3).
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(3)The reduction of the price shall be proportionate to the decrease in the value of the service supplied to the consumer compared with the value that the service would have if it were in conformity with the service contract.
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(4)Where the service contract provides that the service shall be supplied for a period specified in the service contract, the reduction in the price shall be proportionate to the period during which the service was not in conformity with the service contract.
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(5)Where the consumer has the right to reimbursement under subsection (2)(b), the trader shall reimburse the consumer in accordance with section 90 .
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Obligations of consumer in event of termination of service contract 88. (1) This section applies where a consumer has the right under section 84
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(1)or (2) or 86
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(2)(b) to terminate a service contract.
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(2)The consumer shall exercise his or her right to terminate the service contract by means of a statement to the trader expressing the decision to terminate the service contract.
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(3)A consumer who exercises the right to terminate the service contract— (a) subject to subsections (4) and (5), shall make any goods and other materials supplied under the service contract available for collection by the trader, (b) shall not use any digital content or digital service supplied under the service contract, and (c) shall not make any digital content or digital service supplied under the service contract available to any third person.
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(4)The consumer shall not be required to make the goods available for collection by the trader or to return the goods or other materials to the trader if their collection or return— (a) would cause disproportionate inconvenience to the consumer, or (b) would damage the property of the consumer.
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(5)Subsection (3)(a) shall not apply where— (a) the consumer and the trader agree that the consumer should return the goods and any other materials to the trader and the trader should bear the cost to the consumer of doing so, and (b) the consumer and the trader comply with the agreement.
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(6)If a consumer fails to comply with an obligation imposed by subsection (3) or fails to return the goods and any other materials under an agreement such as is mentioned in subsection (5), he or she shall be liable in damages for any loss or damage suffered by the trader as a result of the failure.
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Obligations of trader where service contract terminated 89. (1) Where the consumer exercises the right under section 84
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(1)or (2) or 86
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(2)(b) to terminate a service contract, the trader shall reimburse the consumer in accordance with section 90 for all payments made under the service contract.
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(2)Where a service contract provides for the supply of the service for a period specified in the contract, the trader shall reimburse the consumer only for— (a) the proportionate part of the price paid corresponding to the period during which the service was not in conformity with the service contract, and (b) any part of the price paid by the consumer in advance for any period of the service contract that would have remained had the service contract not been terminated.
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Time limits and means of reimbursement by trader: service contract 90. (1) Where reimbursement is owed to the consumer by the trader pursuant to a price reduction under section 87 or the termination of the service contract under section 89 , the trader shall make the reimbursement— (a) without undue delay and in any event before the expiry of the period of 14 days beginning on the date on which the trader was informed of the consumer’s decision to exercise the right to a proportionate reduction in the price or to terminate the contract, (b) using the same means of payment as the consumer used to pay for the service, unless the consumer expressly agrees otherwise and provided that the consumer does not incur any fees as a result of such reimbursement, and (c) without the imposition of any fee on the consumer in respect of the reimbursement.
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(2)If a trader fails to comply with the obligation to reimburse the consumer in accordance with this section, the trader shall be liable in damages for any loss or damage suffered by the consumer as a result of the failure.
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General right to withhold payment: service contract 91. (1) Subject to subsections (2) and (3), where a trader fails to comply with an obligation imposed on the trader by this Part in relation to a service contract, the consumer shall have the right to withhold payment of any outstanding part of the price payable under the contract until the trader fulfils the obligation.
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(2)Where the failure of the trader to comply with an obligation imposed on the trader by this Part relates to a lack of conformity of the service with the service contract, the part of the price withheld by the consumer under subsection (1) shall be proportionate to the decrease in the value of the service received by the consumer compared with the value of the service if it had been in conformity with the service contract.
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(3)Where the failure of the trader to comply with an obligation imposed on the trader by this Part relates to a failure to supply the service (other than a short-term interruption of the supply referred to in section 78
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(7)), the part of the price withheld by the consumer under subsection (1) shall be proportionate to the price payable for the period during which the service was not supplied by the trader.
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(4)The consumer shall exercise the right to withhold payment under subsection (1) by means of a statement to the trader expressing the consumer’s decision to withhold payment until the trader has fulfilled the trader’s obligations under this Part.
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Effect of termination of service contract on ancillary contract 92. (1) Where a consumer terminates a service contract in accordance with section 88 , any ancillary contract shall be automatically terminated without any cost to the consumer.
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(2)When a trader is informed by a consumer in accordance with section 88
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(2)of the consumer’s decision to terminate a service contract, the trader shall inform any other trader with whom the consumer has an ancillary contract of the termination of that contract by subsection (1).
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(3)Where an ancillary contract is terminated by subsection (1)— (a) the consumer shall comply with the obligation in section 88
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(3), and (b) the trader with whom the consumer had that contract shall comply with the obligations in section 89 .
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(4)Where any security has been provided under an ancillary contract that is terminated under subsection (1), it is to be treated as never having had effect and any property lodged with the trader or a person other than the trader (a “third party”) solely for the purposes of that security shall be returned immediately by the trader or third party.
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(5)In this section, “ancillary contract”, in relation to a service contract concluded between a consumer and a trader (in this subsection referred to as the “principal contract”), means another contract (other than a hire-purchase agreement or a consumer-hire agreement) concluded between that consumer and that trader, or that consumer and a third party, under which— (a) the trader, or (b) in pursuance of arrangements made between the trader and a third party, the third party, supplies to the consumer goods, digital content, a digital service or a service related to the principal contract.
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Remedies where contract also provides for sale of goods etc.
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93.(1) This section applies where a service is supplied to a consumer under a contract that provides also for the sale of goods or the supply of digital content or a digital service.
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(2)Where the conditions in subsection (3) are met, the consumer shall have the right— (a) to terminate the contract, or (b) to obtain a proportionate reduction in the price payable under the contract.
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(3)The conditions referred to in subsection (2) are the following— (a) if it were a contract for the supply of a service only, the consumer would have the right to obtain a proportionate reduction in the price under section 87 or to terminate the contract under section 88 , and (b) the value of the goods, digital content or digital service to the consumer would be materially reduced in the absence of the service.
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(4)In objectively determining for the purposes of subsection (3)(b) whether a reduction in the value of the goods, digital content or digital service to the consumer would, in the absence of the service, be reduced to an extent that would justify the termination of the contract or a proportionate reduction in the price payable under the contract, all the circumstances shall be taken into account, including in particular— (a) the nature and purpose of the contract, (b) the relative value of the different elements of the contract, and (c) the nature and degree of the inter-dependence of the different elements of the contract.
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(5)Where the consumer exercises the right to terminate the contract under subsection (2)— (a) the consumer shall comply with the obligations in section 88
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(3), and (b) the trader with whom the consumer has that contract shall comply with the obligations in section 89 .
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(6)This section shall not apply where a bundle of electronic communications services or a bundle of such services and terminal equipment within the scope of Article 107 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 20181 establishing the European Electronic Communications Code (Recast) includes elements of an internet access service or a number-based interpersonal communications service.
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(7)This section does not apply to a consumer-hire agreement or a hire-purchase agreement.
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Exclusion or limitation of liability of trader (Part 4) 94. (1) A term of a service contract or of any other contract between a consumer and a trader shall not exclude or restrict the trader’s liability under any of the following provisions: (a) section 78 (supply of service); (b) section 79 (service to be in conformity with service contract); (c) section 80 (subjective requirements for conformity with service contract); (d) section 81 (objective requirements for conformity with service contract); (e) section 82 (implied terms of service contract); (f) section 83 (reasonable price to be paid for service).
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(2)A term of a service contract or of any other contract between a consumer and a trader which purports to, or has the effect of, excluding or restricting the liability of the trader under any of the provisions specified in subsection (1) shall not be binding on the consumer.
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(3)The references in subsections (1) and (2) to excluding or restricting the trader’s liability include a reference to— (a) excluding or limiting a right or remedy in respect of a liability under a provision specified in subsection (1), (b) making such a right or remedy, or its enforcement, subject to a restrictive or onerous condition, (c) allowing a trader to put a consumer at a disadvantage as a result of pursuing such a right or remedy, (d) excluding or restricting rules of evidence or procedure, or (e) preventing an obligation arising or limiting its extent.
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(4)An agreement in writing to submit present or future disputes to an ADR procedure within the meaning of the European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015 ( S.I. No. 343 of 2015 ) is not to be regarded as excluding or restricting any liability for the purposes of this section.
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(5)A trader who contravenes subsection (1) commits an offence.
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Continuing entitlement to pursue other remedies 95. (1) The remedies provided for in this Chapter do not affect the right of a consumer to pursue other remedies (without recovering twice for the same loss) where a service is not in conformity with the service contract or the trader otherwise fails to comply with the requirements of this Part.
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(2)The other remedies referred to in subsection (1) include in particular any of the following remedies that may be available to the consumer: (a) claiming damages; (b) relying on the failure of the trader to comply with the requirements of this Part against a claim under the service contract by the trader for payment of the price; (c) seeking to recover money paid to the trader for a service that does not comply with the requirements of this Part; (d) having a lack of conformity of the service with the service contract remedied elsewhere and recovering from the trader all reasonable costs incurred in having the lack of conformity so remedied.
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(3)An exclusion or limitation of a remedy provided for in this section shall be subject to assessment for unfairness under Part 6.
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PART 5
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Consumer information, cancellation and other rights
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Chapter 1
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Interpretation and application Interpretation (Part 5) 96. (1) In this Part— “business premises”, in relation to a trader, means— (a) any immovable retail premises where the trader carries out activities in the course of the trader’s trade, business, craft or profession on a permanent basis, or (b) any movable retail premises where the trader usually carries out activities in the course of the trader’s trade, business, craft or profession; “Consumer Rights Directive” means Directive 2011/83/EU of the European Parliament and of the Council of 25 October 201111 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, as amended by Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 201512 and Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 201913 ; “goods” includes digital content that is supplied on a tangible medium; “linked travel arrangement”, “organiser”, “package”, “package travel contract” and “traveller” have the same meanings as they have in the Package Holidays and Travel Trade Act 1995 ; “on-premises contract” means any contract between a trader and a consumer other than a distance contract or an off-premises contract; “public auction” means a method of sale under which— (a) goods or services are offered by a trader through a transparent, competitive bidding procedure run by an auctioneer to consumers who attend, or are given the possibility to attend, the auction, in person, and (b) the successful bidder is bound to purchase the goods or services; “sales contract” has the meaning assigned to it by section 11
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(1)and includes a contract that has as its object both the sale of goods and the supply of a service; “service contract” has the meaning assigned to it by section 2 except that it does not include— (a) a contract for the supply of gas, water or electricity that is not supplied in a limited volume or set quantity, or (b) a contract for the supply of district heating.
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(2)A word or expression used in this Part that is also used in the Consumer Rights Directive has, unless the context otherwise requires, the same meaning in this Part as it has in that Directive.
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(3)A court shall construe this Part in a manner that gives effect to the Consumer Rights Directive, and for this purpose, the court shall have regard to the provisions of that Directive, including its preamble.
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Application (Part 5) 97. (1) Subject to subsections (3) to (8) and sections 98 , 104 , 111 and 119 to 121 , this Part applies to any contract specified in subsection (2) that is concluded between a trader and a consumer on or after the day on which this section comes into operation.
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(2)The contracts referred to in subsection (1) are: (a) a sales contract; (b) a service contract; (c) a contract for the supply of digital content that is not supplied on a tangible medium; (d) a digital service contract; (e) a contract for the supply of water, gas or electricity that is not supplied in a limited volume or set quantity; (f) a contract for the supply of district heating.
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(3)This Part does not apply to any of the following contracts concluded between a trader and a consumer: (a) subject to section 121
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(6), a contract for financial services (other than a payment for such services in any contract to which this Part applies); (b) a contract for rental of accommodation for residential purposes.
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(4)This Part (other than Chapter 6) does not apply to any of the following contracts concluded between a trader and a consumer: (a) a contract for gambling; (b) a contract for the creation, acquisition or transfer of immovable property or of rights in immovable property; (c) a contract for the construction of new buildings or the substantial conversion of existing buildings; (d) a contract within the scope of Directive 2008/122/EC of the European Parliament and of the Council of 14 January 200914 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts; (e) a contract established, in accordance with the law of a Member State, by a public office-holder who has a statutory duty to be independent and impartial and who must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful legal consideration and with knowledge of its legal scope; (f) a contract for the supply of foodstuffs, beverages or other goods, intended for current consumption in the household, and which are physically supplied by the trader on frequent and regular rounds to the consumer’s home, residence or workplace; (g) a contract concluded by means of automatic vending machines or automated commercial premises; (h) a contract concluded with a telecommunications operator through a public pay telephone for the use of the telephone; (i) a contract concluded for the use of one single connection by telephone, internet or fax established by a consumer; (j) a contract for any goods sold by way of execution or otherwise by authority of law.
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(5)Subject to subsections (6) and (7), this Part does not apply to— (a) a package travel contract or a linked travel arrangement, or (b) a contract for passenger transport services.
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(6)Sections 108 and 122 to 124 shall apply in relation to a package travel contract or a linked travel arrangement concluded on or after the day on which this section comes into operation subject to the following modifications and any other necessary modifications: (a) a reference to a trader shall be construed as a reference to an organiser or a trader (within the meaning of the Package Holidays and Travel Trade Act 1995 ) facilitating linked travel arrangements; (b) a reference to a consumer shall be construed as a reference to a traveller; (c) a reference to a contract shall be construed as a reference to a package travel contract or a linked travel arrangement.
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(7)Sections 108 and 122 to 124 shall apply in relation to a contract for passenger transport services concluded on or after the day on which this section comes into operation.
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(8)Chapters 2 and 6 of this Part shall apply to a contract for the supply of healthcare concluded between a trader and a consumer on or after the day on which this section comes into operation but otherwise this Part does not apply to such a contract.
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(9)Chapter 5 shall also apply to a contract, concluded on or after the day on which this section comes into operation, for— (a) a service in addition to the urgent repairs or maintenance requested by the consumer, and (b) goods other than replacement parts necessarily used in carrying out the maintenance or making the repairs, provided by the trader on the occasion of a visit made for the purpose of carrying out urgent repairs or maintenance.
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(10)For the purposes of subsection (4)(e), “Member State” means a Member State of the European Union or, not being such a Member State, a state that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 (as adjusted by the Protocol signed at Brussels on 17 March 1993).
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(11)In this section— “gambling” means wagering a stake with pecuniary value in games of chance, including lotteries, casino games and betting transactions; “healthcare” means health services provided by health professionals to patients in order to assess, maintain or restore their state of health, whether or not these services are provided via healthcare facilities, and includes the prescription, dispensing and provision of medicinal products and medical devices; “health professional”, “medical device”, “medicinal product”, “patient” and “prescription” have the meanings assigned to them by Directive 2011/24/EU of the European Parliament and of the Council of 9 March 201116 on the application of patients’ rights in cross-border healthcare; “passenger transport services” means services for the conveyance of passengers by air, rail, road, sea or waterway, but excludes car rental services.
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Off-premises contracts to which Part 5 does not apply 98. (1) This Part does not apply to an off-premises contract under which the payment to be made by the consumer does not exceed €50.
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(2)Where two or more off-premises contracts with related subjects are concluded between a trader and a consumer at the same time, the total of the payments to be made by the consumer under those contracts shall be taken into account in applying the monetary threshold specified in subsection (1).
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Rights of consumer cannot be waived 99. (1) Any purported waiver by a consumer of a right conferred by this Part is of no effect.
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(2)Any term of a contract which directly or indirectly waives or restricts the rights conferred by this Part is not binding on the consumer.
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Burden of proof 100. In relation to compliance with Chapters 2 and 3 of this Part, it is for the trader to show that the trader has complied with any requirement imposed on the trader under this Part in relation to the provision of information to the consumer.
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Chapter 2
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Consumer information for on-premises contract Information requirements for on-premises contract 101. (1) Before a consumer is bound by an on-premises contract or any corresponding offer, the trader shall provide the consumer with the information specified in Schedule 2 in a clear and comprehensible manner, if that information is not already apparent from the context.
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(2)Subsection (1) does not apply to a contract that involves a day-to-day transaction and is performed immediately on conclusion of the contract.
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(3)A trader who contravenes subsection (1) commits an offence.
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Power of Minister to specify further information requirements 102. (1) Subject to subsection (2), the Minister may, after consultation with such persons as he or she considers appropriate, by regulations prescribe further information that is to be provided by the trader to the consumer before a consumer is bound by— (a) an on-premises contract or any corresponding offer, or (b) a particular on-premises contract or corresponding offer of such description or class as may be prescribed in relation to the further information concerned.
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(2)In making regulations under subsection (1), the Minister shall have regard to the objective of ensuring that the information provided to consumers before they enter into on-premises contracts or corresponding offers is adequate to enable them to make informed decisions.
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(3)In complying with subsection (2), the Minister shall take account in particular of the following matters: (a) the adequacy of the information provided to consumers under section 101
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(1); (b) the nature of the further information to be provided to consumers and the manner of its provision; (c) the cost to traders of providing the further information; (d) any recommendation made by the Competition and Consumer Protection Commission to the Minister under section 10
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(3)of the Competition and Consumer Protection Act 2014 .
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Chapter 3
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Consumer information for off-premises contract Information requirements for off-premises contract 103. (1) Before the consumer is bound by an off-premises contract or any corresponding offer, the trader shall provide to the consumer— (a) in a clear and comprehensible manner, the information specified in Schedule 3 , and (b) where a right to cancel the contract exists, the model cancellation form set out in
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Part 2
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of Schedule 4 .
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(2)The trader may provide the information specified in clauses (m) to (o) of Schedule 3 by means of the model instructions on the right to cancel set out in
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Part 1
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of Schedule 4 , and a trader who correctly supplies those instructions shall be deemed to have complied with the duties imposed by subsection (1) in respect of those clauses.
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(3)In the case of a public auction, the information specified in clauses (b), (d) and (e)(i) of Schedule 3 may be provided in relation to the auctioneer rather than the trader on whose behalf the auctioneer has acted and, if so, the information specified in clauses (c) and (e)(ii) of Schedule 3 shall be provided in relation to that trader.
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(4)The information referred to in subsection (1)(a)— (a) shall be given on paper or, if the consumer agrees, on another durable medium, (b) shall be legible, and (c) shall be in plain and intelligible language.
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(5)The cancellation form referred to in subsection (1)(b) shall be given on paper, or if the consumer agrees, on another durable medium, and shall be legible.
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(6)All means of communication provided by the trader under clause (d) of Schedule 3 shall enable the consumer to contact the trader quickly and communicate with the trader efficiently.
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(7)The information referred to in subsection (1)(a) forms part of the contract and shall not be altered without the express agreement of the trader and the consumer.
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(8)If the trader has not complied with subsection (1) in respect of clauses (g) and (n) of Schedule 3, the consumer is not liable for the charges or costs specified in those clauses.
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(9)A trader who contravenes subsection (1) commits an offence.
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(10)This section does not apply to an off-premises contract to which section 104 applies.
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Information requirements for off-premises contract for repairs or maintenance 104. (1) This section applies to an off-premises contract where— (a) the consumer explicitly requests the services of the trader for the purpose of carrying out repairs or maintenance, (b) the trader and the consumer immediately perform their obligations under the contract, and (c) the payment to be made by the consumer under the contract does not exceed €200.
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(2)Before the consumer is bound by an off-premises contract, the trader shall provide the consumer with the following information: (a) the main characteristics of the service, to the extent appropriate to the medium and to the service; (b) the identity of the trader, including the trader’s trading name and legal identity; (c) if the trader is acting on behalf of another trader, the identity and geographical address of that other trader; (d) subject to subsection (7), the geographical address at which the trader is established, the trader’s telephone number and email address, and, where applicable, the details of any other means of online communications provided by the trader which guarantee that the consumer can keep any written correspondence with the trader, including its date and time, on a durable medium; (e) the total price of the service inclusive of taxes or, where the nature of the service is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated; (f) where a right to cancel the contract exists, the conditions, time limit and procedures for exercising that right in accordance with section 115 ; (g) where a right to cancel the contract under section 112 does not apply, a statement that the consumer will not benefit from the right to cancel the contract or, where applicable, the circumstances in which the consumer loses that right.
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(3)The trader shall provide the consumer with— (a) the information referred to in section 103
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(1)(a) in the copy or confirmation of the contract to be provided by the trader in accordance with section 105 , and (b) where the right to cancel the contract exists, the model cancellation form set out in Part 2 of Schedule 4.
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(4)Where a trader is required to provide the information specified in subsection (2)(f) and clauses (m) to (o) of Schedule 3— (a) the trader may provide that information by means of the model instructions on the right to cancel set out in
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Part 1
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of Schedule 4 , and (b) a trader who correctly supplies those instructions shall be deemed to have complied with the duties imposed by subsection (2)(f) and by subsection (3)(a) in respect of clauses (m) to (o) of Schedule 3 .
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(5)The information specified in subsection (2)(b) to (e)— (a) shall be given on paper or, if the consumer agrees, on another durable medium, (b) shall be legible, and (c) shall be in plain and intelligible language.
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(6)If the consumer expressly agrees, the information referred to in subsection (2)(a), (f) and (g) need not be provided by the trader on paper or another durable medium.
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(7)All means of communication provided by the trader under subsection (2)(d) shall enable the consumer to contact the trader quickly and communicate with the trader efficiently.
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(8)The information referred to in subsections (2) and (3)(a) forms part of the contract and shall not be altered without the express agreement of the trader and the consumer.
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(9)A trader who contravenes subsection (2) or (3) commits an offence.
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Provision of copy or confirmation of off-premises contract 105. (1) A trader who concludes an off-premises contract with a consumer shall provide the consumer with a copy of the signed contract or confirmation of the contract at the time of, or before, the conclusion of the contract.
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(2)The copy or confirmation of the contract shall be provided on paper or, if the consumer agrees, on another durable medium.
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(3)Where— (a) an off-premises contract is a contract for the supply of digital content that is not supplied on a tangible medium, and (b) performance of the contract has begun with the consumer’s prior express consent, the copy or confirmation of the contract provided by the trader shall include confirmation of the consumer’s acknowledgement, in accordance with section 111 (e)(ii) of the loss of the right to cancel the contract.
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(4)A trader who contravenes any of the provisions of this section commits an offence.
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Chapter 4
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Consumer information for distance contract Information requirements for distance contract 106. (1) Before the consumer is bound by a distance contract or any corresponding offer, the trader shall give or make available to the consumer— (a) in plain and intelligible language and in a way appropriate to the means of distance communication used, the information specified in Schedule 3, and (b) where a right to cancel the contract exists, the model cancellation form set out in
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Part 2
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of Schedule 4 .
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(2)The trader may provide the information specified in clauses (m) to (o) of Schedule 3 by means of the instructions on cancellation set out in
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Part 1
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of Schedule 4 , and a trader who correctly supplies those instructions shall be deemed to have complied with the duties imposed by subsection (1) in respect of those clauses.
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(3)In the case of a public auction, the information specified in clauses (b), (d) and (e)(i) of Schedule 3 may be provided in relation to the auctioneer rather than the trader on whose behalf the auctioneer has acted and, if so, the information specified in clauses (c) and (e)(ii) of Schedule 3 shall be provided in relation to that trader.
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(4)Where the information referred to in subsection (1)(a) or the cancellation form referred to in subsection (1)(b) is provided on a durable medium, it shall be legible.
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(5)All means of communication provided by the trader under clause (d) of Schedule 3 shall enable the consumer to contact the trader quickly and communicate with the trader efficiently.
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(6)Where a distance contract is concluded through a means of distance communication that allows limited space or time to display the information, the trader shall provide— (a) the information specified in clauses (a), (b), (f) to (h), (m) and (t) of Schedule 3 on or through that means of communication in accordance with subsections (1) and (2), and (b) the other information specified in Schedule 3 and the model cancellation form set out in
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Part 2
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of Schedule 4 in an appropriate way in accordance with subsections (1) to (4).
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(7)Without prejudice to subsection (6), a trader who makes a telephone call to the consumer with a view to concluding a distance contract shall, at the beginning of that call, disclose— (a) the trader’s identity, (b) where the call is made on behalf of another trader, the identity of that other trader, and (c) the commercial purpose of the call.
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(8)Where a distance contract is concluded through a trading website, the trader shall ensure that— (a) the website indicates clearly and legibly— (i) whether any delivery restrictions apply, and (ii) which means of payment are accepted, and (b) the information referred to in paragraph (a) is indicated at or before the beginning of the ordering process.
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(9)The information referred to in subsection (1)(a) forms part of the distance contract and shall not be altered without the express agreement of the trader and the consumer.
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(10)If the trader has not complied with subsection (1) in respect of clauses (g) and (n) of Schedule 3 , the consumer is not liable for the charges or costs specified in those clauses.
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(11)A trader who contravenes subsection (1), (6), (7) or (8) commits an offence.
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Additional information requirements for distance contract concluded on online marketplace 107. (1) Before the consumer is bound by a distance contract or any corresponding offer on an online marketplace, the provider of the online marketplace shall, without prejudice to the provisions of Parts 3 and 4 of the Act of 2007, provide the following information to the consumer in plain and intelligible language and in a way appropriate to the means of distance communication used: (a) general information on the main parameters determining the ranking of offers presented to a consumer as a result of a search query and the relative importance of those parameters as opposed to other parameters; (b) whether the third party offering the goods, service, digital content or digital service is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace; (c) where the third party offering the goods, service, digital content or digital service is not a trader, that the consumer rights arising from European Union consumer protection law do not apply to the contract; (d) information on how any obligations relating to the contract are shared between the third party offering the goods, service, digital content or digital service and the provider of the online marketplace.
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(2)(a) The information to be provided by the provider of the online marketplace under subsection (1)(a) shall be made available in a specific section of the online interface that is directly and easily accessible from the page where the offers are presented. (b) The information to be provided by the provider of the online marketplace under subsection (1)(d) shall be without prejudice to any responsibility that the provider of the online marketplace or the third party trader has in relation to the contract under European Union and national law other than consumer protection law.
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(3)In subsection (1)(a), “ranking” means the relative prominence given to goods, services, digital content or digital services as presented, organised or communicated by the provider of the online marketplace, irrespective of the technological means used for such presentation, organisation or communication.
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(4)A provider of an online marketplace who contravenes subsection (1) commits an offence.
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(5)In this section— “online marketplace” means a service using software (including a website, part of a website or an application) operated by or on behalf of a trader which allows a consumer to conclude distance contracts with other traders or consumers; “provider of an online marketplace” means any trader who provides an online marketplace to consumers.
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Additional information requirements for distance contract concluded by electronic means 108. (1) This section applies to a distance contract concluded by electronic means, including the following types of contract: (a) a package travel contract; (b) a contract for passenger transport services.
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(2)This section shall apply to packages and linked travel arrangements subject to the following modifications and any other necessary modifications: (a) a reference to a trader shall be construed as a reference to an organiser or a trader facilitating linked travel arrangements; (b) a reference to a consumer shall be construed as a reference to a traveller; (c) a reference to a package travel contract shall be construed as a reference to a package travel contract or a linked travel arrangement.
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(3)If a contract places a consumer under an obligation to pay, the trader shall make the consumer aware in a clear and prominent manner, and directly before the consumer places his or her order, of the information specified in clauses (a), (f) to (h), (t) and (u) of Schedule 3 .
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(4)The trader shall ensure that the consumer, when placing an order, explicitly acknowledges that the order implies an obligation to pay.
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(5)If placing an order in accordance with subsection (4) entails activating a button or a similar function, the trader shall ensure that the button or similar function is labelled in an easily legible manner, with only the words “order with obligation to pay”, or with a corresponding unambiguous formulation indicating that the order entails an obligation to pay the trader.
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(6)If the trader has not complied with subsection (4) and, where applicable, subsection (5), the consumer is not bound by the contract or order.
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(7)A trader who contravenes subsection (3), (4) or (5) commits an offence.
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Provision of confirmation of distance contract 109. (1) A trader who concludes a distance contract with a consumer shall provide the consumer with confirmation of the concluded contract on a durable medium.
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(2)The confirmation shall include all of the information specified in Schedule 3 unless the trader has already provided that information to the consumer on a durable medium before the conclusion of the contract.
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(3)Where— (a) a distance contract is a contract for the supply of digital content that is not supplied on a tangible medium, and (b) the performance of the contract has begun with the consumer’s prior express consent, the confirmation shall include confirmation of the consumer’s acknowledgement, in accordance with section 111 (e)(ii) of the loss of the right to cancel the contract.
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(4)The confirmation required by subsection (1) shall be provided within a reasonable time after the conclusion of the contract and at the latest— (a) by the time of the delivery of the goods, or (b) before performance begins of— (i) a supply of a service, (ii) a supply of digital content that is not supplied on a tangible medium, (iii) a supply of a digital service, (iv) a supply of water, gas or electricity that is not supplied in a limited volume or set quantity, or (v) a supply of district heating.
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(5)A trader who contravenes any of the provisions of this section commits an offence.
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Chapter 5
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Right to cancel distance contract or off-premises contract Interpretation (Chapter 5) 110. In this Chapter, “cancellation period”, in relation to a distance contract or an off-premises contract, shall be construed in accordance with section 113 .
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Application (Chapter 5) 111. This Chapter does not apply to a distance contract or an off-premises contract concluded between a trader and a consumer that is— (a) a service contract, where the service has been fully supplied and the supply of the service began with the consumer’s prior express consent and acknowledgement that he or she will lose the right to cancel once the service has been fully supplied by the trader, (b) a contract under which the trader supplies or undertakes to supply a digital service to the consumer and under which the consumer does not pay or undertake to pay the price of the digital service, where the digital service has been fully supplied, (c) a contract under which the trader supplies or undertakes to supply a digital service to the consumer and under which the consumer pays or undertakes to pay the price of the digital service, where— (i) the digital service has been fully supplied, and (ii) the supply of the digital service began with the consumer’s prior express consent and acknowledgement that he or she will lose the right to cancel once the digital service has been fully supplied by the trader, (d) a contract under which the trader supplies or undertakes to supply digital content that is not supplied on a tangible medium to the consumer and under which the consumer does not pay or undertake to pay the price of the digital content, where supply of the digital content has begun, (e) a contract under which the trader supplies or undertakes to supply digital content that is not supplied on a tangible medium to the consumer and under which the consumer pays or undertakes to pay the price of the digital content, where— (i) supply of the digital content has begun, (ii) the consumer provided prior express consent to the supply beginning during the cancellation period and an acknowledgement that he or she will thereby lose the right to cancel, and (iii) the trader provided confirmation of the contract in accordance with section 105 or, as the case may be, section 109 , (f) a contract under which the trader supplies or undertakes to supply goods, a service or a digital service, whose price is dependent on fluctuations in the financial market that may occur during the cancellation period and that cannot be controlled by the trader, (g) a contract for the supply of non-prefabricated goods made on the basis of an individual choice of, or decision by, the consumer, (h) a contract for the supply of goods that are clearly personalised, (i) a contract for the supply of goods that are liable to deteriorate or expire rapidly,
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(j) a contract for the supply of sealed goods that— (i) are not suitable for return for health protection and hygiene reasons, and (ii) were unsealed after delivery, (k) a contract for the supply of goods that are, according to their nature, inseparably mixed with other items after their delivery, (l) a contract for the supply of an alcoholic beverage where— (i) the price has been agreed at the time of the conclusion of the contract, (ii) the delivery of the beverage is to take place more than 30 days after the conclusion of the contract, and (iii) the value of the beverage is dependent on fluctuations in the market that cannot be controlled by the trader, (m) subject to subsection, a contract under which the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance, (n) a contract for the supply of sealed audio or sealed video recordings or sealed computer software that were unsealed after delivery, (o) a contract for the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications, (p) a contract concluded at a public auction, or (q) a contract for— (i) the provision of accommodation other than for residential purposes, (ii) the transport of goods, (iii) car rental services, (iv) catering, or (v) services related to leisure activities, where the contract provides for a specific date or period of performance.
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Right to cancel 112. (1) A consumer may cancel a distance contract or an off-premises contract before the expiry of the cancellation period in accordance with section 115 without giving any reason for the cancellation.
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(2)A consumer who cancels a distance contract or an off-premises contract in accordance with subsection (1) shall not incur any costs or liability other than those for which he or she is liable under the following provisions: (a) section 117
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(2)(non-standard delivery); (b) section 118
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(5)(direct cost of returning goods); (c) section 118
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(6)(b) (diminished value of goods); (d) section 119
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(3)(services, digital services, gas, water, electricity, or district heating supplied during cancellation period).
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Duration of cancellation period 113. (1) Subject to section 114 , the cancellation period for a distance contract or an off‑premises contract expires in accordance with subsections (2) to (8).
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(2)Subject to subsection (3), the cancellation period for— (a) a service contract, (b) a digital service contract, (c) a contract for the supply of digital content that is not supplied on a tangible medium, (d) a contract for the supply of water, gas or electricity that is not supplied in a limited volume or set quantity, or (e) a contract for the supply of district heating, expires on the expiry of the period of 14 days beginning on the day on which the contract is concluded.
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(3)Where a contract referred to in subsection (2) was concluded in the context of an unsolicited visit by a trader to a consumer’s home or an excursion organised by a trader with the aim or effect of promoting or selling to a consumer— (a) a service, (b) digital content that is not supplied on a tangible medium, (c) a digital service, or (d) water, gas or electricity that is not supplied in a limited volume or set quantity, the cancellation period expires on the expiry of the period of 30 days beginning on the day on which the contract is concluded.
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(4)Subject to subsections (5) to (8), the cancellation period for a sales contract expires on the expiry of the period of 14 days beginning on the day on which the consumer acquires physical possession of the goods.
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(5)The cancellation period for a sales contract for multiple goods that are ordered by the consumer in one order and delivered separately expires on the expiry of the period of 14 days beginning on the day on which the consumer acquires physical possession of the last of the goods.
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(6)The cancellation period for a sales contract for goods consisting of multiple lots or pieces expires on the expiry of the period of 14 days beginning on the day on which the consumer acquires physical possession of the last lot or piece.
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(7)The cancellation period for a sales contract for regular delivery of goods during a defined period of time expires on the expiry of the period of 14 days beginning on the day on which the consumer acquires physical possession of the first of the goods.
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(8)The cancellation period for a sales contract concluded in the context of an unsolicited visit by a trader to a consumer’s home or an excursion organised by a trader with the aim or effect of promoting or selling goods to a consumer expires on the expiry of the period of 30 days beginning on the day on which— (a) where the contract falls within subsection (5), the consumer acquires physical possession of the last of the goods, (b) where the contract falls within subsection (6), the consumer acquires physical possession of the last lot or piece of the goods, (c) where the contract falls within subsection (7), the consumer acquires physical possession of the first of the goods.
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(9)In subsections (4) to (8), “consumer” includes a person, other than the carrier, nominated by the consumer for the purpose of acquiring physical possession of the goods.
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Omission of information on right to cancel 114. (1) If a trader does not provide a consumer with the information on the right to cancel the contract required by clause (m) of Schedule 3 , the cancellation period expires on the expiry of the period of 12 months beginning on the day on which it would otherwise have expired in accordance with section 113 .
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(2)Subject to subsection (3), if the trader provides the consumer with the information on the right to cancel required by clause (m) of Schedule 3 within 12 months of the day on which the cancellation period would, but for this subsection have expired in accordance with section 113 , that cancellation period shall instead expire on the expiry of the period of 14 days beginning on the day on which the consumer receives that information.
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(3)In the case of an off-premises contract concluded in the context of an unsolicited visit by a trader to a consumer’s home or an excursion organised by a trader with the aim or effect of promoting or selling to a consumer— (a) goods, (b) a service, (c) digital content that is not supplied on a tangible medium, (d) a digital service, or (e) water, gas or electricity that is not supplied in a limited volume or set quantity, where the trader provides the consumer with the information on the right to cancel required by clause (m) of Schedule 3 within 12 months of the day on which the cancellation period would, but for this subsection, have expired in accordance with section 113 , that cancellation period shall instead expire on the expiry of the period of 30 days beginning on the day on which the consumer receives that information.
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(4)The information on the right to cancel referred to in subsections (1) to (3) shall be provided in accordance with: (a) section 103 , in the case of off-premises contracts; (b) section 104 , in the case of off-premises contracts for repairs or maintenance to which that section applies; (c) section 106 , in the case of distance contracts.
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Exercise of right to cancel 115. (1) Where the consumer wishes to exercise the right to cancel a distance contract or an off-premises contract under section 112 , the consumer shall, before the expiry of the cancellation period, inform the trader of his or her decision to cancel the contract.
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(2)For the purposes of informing the trader under subsection (1), the consumer may— (a) use the model cancellation form set out in
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Part 2
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of Schedule 4 , or (b) make any other unequivocal statement setting out his or her decision to cancel the contract.
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(3)Where the trader gives the consumer the option to do so, the consumer may fill in and submit the cancellation form or the statement referred to in subsection (2) on the trader’s website.
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(4)Where the consumer exercises the option in subsection (3), the trader shall communicate to the consumer without delay an acknowledgement on a durable medium of receipt of the consumer’s cancellation of the contract.
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(5)The consumer exercises the right to cancel within the cancellation period if he or she sends the communication concerning the exercise of the right to the trader before that period has expired.
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(6)In case of dispute, it is for the consumer to show that the right to cancel was exercised in accordance with this section.
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Effect of cancellation or withdrawal 116. (1) Subject to sections 117 to 121 , the exercise by the consumer of the right to cancel a distance contract or an off-premises contract under section 112 terminates the obligations of the consumer and the trader to perform the contract.
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(2)The withdrawal by the consumer of an offer to enter into a distance contract or an off‑premises contract terminates any obligation on the consumer or the trader to conclude the contract.
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Obligations of trader in event of cancellation 117. (1) Subject to subsection (2), the trader shall reimburse all payments, including any payment for delivery, received from a consumer who exercises the right to cancel a contract.
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(2)If the consumer has expressly opted for a type of delivery costing more than the least expensive type of standard delivery offered by the trader, the trader is required to reimburse the consumer in respect of the payment for delivery only by an amount equivalent to the cost of the least expensive type of standard delivery offered by the trader.
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(3)Subject to subsection (4), the trader shall reimburse the consumer’s payment without undue delay and in any event not later than 14 days after the day on which the trader is informed in accordance with section 115 of the consumer’s decision to cancel the contract.
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(4)Where the cancellation relates to a sales contract, the trader may, unless the trader has offered to collect the goods, withhold the reimbursement until— (a) the trader has received the goods back, or (b) the consumer supplies evidence to the trader that he or she has sent the goods back, whichever first occurs.
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(5)Unless the consumer has expressly agreed otherwise, the trader shall reimburse the consumer using the same means of payment as the consumer used for the initial transaction.
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(6)Where the consumer agrees that the reimbursement may be made by a different means of payment to that used for the initial transaction, the trader shall ensure that the consumer does not incur any fees as a result of the use of that different means of payment.
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(7)The trader shall not use any content, other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader, except where such content— (a) has no utility outside the context of the digital content or digital service supplied by the trader, (b) only relates to the consumer’s activity when using the digital content or digital service supplied by the trader, (c) has been aggregated with other data by the trader and cannot be disaggregated or can be disaggregated only with disproportionate effort, or (d) has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.
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(8)The trader shall, at the request of the consumer, make available to the consumer any content (other than personal data or content to which subsection (7)(a), (b) or (c) applies) which was provided or created by the consumer when using the digital content or digital service supplied by the trader.
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(9)The consumer shall be entitled to retrieve the digital content referred to in subsection (8) free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format.
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(10)Where the consumer cancels the contract, the trader may prevent any further use of the digital content or digital service by the consumer, in particular by making the digital content or digital service inaccessible to the consumer or disabling the user account of the consumer, without prejudice to subsection (8).
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(11)A trader who contravenes any of subsections (1) to (8) commits an offence.
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(12)If the trader fails to comply with an obligation to reimburse the consumer in accordance with this section, the trader shall be liable in damages for any loss or damage suffered by the consumer as a result of that failure.
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Return of goods and obligations of consumer in event of cancellation 118. (1) Where a consumer cancels a sales contract under section 112 , the trader shall collect the goods if— (a) the trader has offered to collect them, or (b) in the case of an off-premises contract, the goods were delivered to the consumer’s home at the time of the conclusion of the contract and the nature of the goods is such that they cannot normally be returned by post.
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(2)Where the trader is required to collect the goods under subsection (1), the trader shall do so at the trader’s own expense.
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(3)Where the trader is not required to collect the goods under subsection (1), the consumer shall— (a) send them back, or (b) hand them over to the trader or to a person authorised by the trader to receive them.
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(4)The consumer shall return or hand over the goods without undue delay and in any event not later than 14 days after the day on which he or she informed the trader in accordance with section 115 of his or her decision to cancel the contract.
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(5)The consumer shall bear the direct costs of returning the goods under subsection (3) unless— (a) the trader has agreed to bear those costs, or (b) the trader has failed to inform the consumer, in accordance with clause (n) of Schedule 3, that the consumer shall bear those costs.
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(6)A consumer who is required to return goods to a trader following the exercise of the right to cancel— (a) shall take reasonable care of the goods prior to returning them, and (b) is liable for any diminished value of the goods resulting from the handling of the goods beyond that necessary to establish their nature, characteristics and functioning.
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(7)There is no liability on the consumer under subsection (6) if the trader has failed to provide the consumer with the information on the right to cancel required by clause (m) of Schedule 3 in accordance with— (a) section 103 , in the case of off-premises contracts, (b) section 104 , in the case of off-premises contacts for repairs or maintenance to which that section applies, or (c) section 106 , in the case of distance contracts.
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(8)If the consumer fails to comply with the obligation to return the goods in accordance with this section, he or she shall be liable in damages for any loss or damage suffered by the trader as a result of that failure.
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(9)Where a consumer cancels a contract for the supply of— (a) digital content that is not supplied on a tangible medium, or (b) a digital service, he or she shall not use the digital content or digital service or make it available to any third person.
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Performance of certain contracts during cancellation period 119. (1) This section applies to any of the following contracts concluded between a trader and a consumer that place the consumer under an obligation to pay: (a) a service contract; (b) a digital service contract; (c) a contract for the supply of water, gas or electricity that is not supplied in a limited volume or set quantity; (d) a contract for the supply of district heating.
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(2)Where the consumer wishes the performance of the contract to begin during the cancellation period, the trader shall— (a) require the consumer to make an express request to this effect on a durable medium, and (b) request the consumer to acknowledge that, once the contract has been fully performed by the trader, the consumer will no longer have the right to cancel the contract under section 112 .
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(3)Subject to subsection (5), where the consumer cancels a contract during the cancellation period before the service, digital service, water, gas, electricity or district heating has been fully supplied, the consumer shall pay to the trader an amount for the supply of such service, digital service, water, gas, electricity or district heating— (a) for the period for which it is supplied, ending on the date the consumer informed the trader of the consumer’s decision to cancel the contract, and (b) that is in proportion to what has been supplied.
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(4)The amount referred to in subsection (3) is to be calculated— (a) on the basis of the total price agreed in the contract, or (b) if that total price is excessive, on the basis of the market value of the service that has been supplied.
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(5)The consumer bears no cost for the supply of the service, digital service, water, gas, electricity or district heating during the cancellation period if— (a) the trader has failed to provide the consumer with the information on— (i) the right to cancel required by clause (m) of Schedule 3 , or (ii) the consumer’s liability to pay the trader reasonable costs for the performance of the contract during the cancellation period required by clause (o) of Schedule 3 , or (b) the consumer has not expressly requested performance to begin during the cancellation period in accordance with subsection (2).
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(6)The information on the right to cancel and on the consumer’s liability to pay the trader reasonable costs referred to in subsection (5)(a) shall be provided in accordance with— (a) section 103 , in the case of off-premises contracts, (b) section 104 , in the case of off-premises contracts for repairs or maintenance to which that section applies, or (c) section 106 , in the case of distance contracts.
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Supply of digital content during cancellation period 120. (1) This section applies where a consumer cancels a contract for the supply of digital content that is not supplied on a tangible medium under section 112 .
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(2)The consumer is not liable for the cost of that supply, whether in full or in part, during the cancellation period if— (a) the consumer has not given his or her prior express consent to the beginning of the performance of the digital content before the expiry of the cancellation period, (b) the consumer has not acknowledged, in giving his or her consent to the beginning of the performance of the digital content before the expiry of the cancellation period, that the right to cancel would be lost, or (c) the trader has failed to provide confirmation in accordance with subsection (3) of— (i) the consumer’s prior express consent to the beginning of the performance of the digital content before the expiry of the cancellation period, and (ii) the consumer’s acknowledgement of the loss of the right to cancel the contract where the performance of the digital content has begun with the consumer’s prior express consent before the expiry of the cancellation period.
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(3)Confirmation is provided in accordance with this subsection— (a) where it relates to an off-premises contract, if it is provided in accordance with section 105 , and (b) where it relates to a distance contract, if it is provided in accordance with section 109 .
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Effect of cancellation on ancillary contract 121. (1) Where a consumer cancels a distance contract or an off-premises contract in accordance with this Chapter, any ancillary contract is automatically terminated without any cost for the consumers other than costs under the following provisions: (a) section 117
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(2)(non-standard delivery); (b) section 118
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(5)(direct cost of returning goods); (c) section 118
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(6)(b) (diminished value of goods); (d) section 119
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(3)(services, gas, water, electricity, or district heating supplied during cancellation period).
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(2)When a trader is informed by a consumer in accordance with section 115 of the consumer’s decision to cancel a contract, the trader shall inform any other trader with whom the consumer has an ancillary contract of its termination by subsection (1).
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(3)Where an ancillary contract is terminated by subsection (1)— (a) the trader with whom the consumer has that contract shall reimburse all payments received from the consumer, and (b) the consumer— (i) shall return any goods delivered under the ancillary contract to the trader at the trader’s expense, and (ii) shall not use any digital content or digital service supplied under the ancillary contract or make it available to any third person.
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(4)Where any security has been provided under an ancillary contract that is terminated in accordance with subsection (1), it is to be treated as never having had effect and any property lodged with the trader or a person other than the trader solely for the purposes of that security shall be returned immediately by the trader or other person.
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(5)Subsection (1) is without prejudice to Regulation 18 of the European Communities (Consumer Credit Agreements) Regulations 2010 ( S.I. No. 281 of 2010 ).
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(6)Notwithstanding section 97
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(3)(a), contracts for financial services may be ancillary contracts for the purposes of this section.
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(7)In this section, “ancillary contract” means a contract under which— (a) the consumer acquires— (i) goods, (ii) a service, (iii) digital content, (iv) a digital service, or (v) water, gas or electricity that is not supplied in a limited volume or set quantity, related to a distance contract or an off-premises contract, and (b) the goods are, or the service, digital content, digital service, water, gas or electricity is, supplied by— (i) the trader, or (ii) a person other than the trader on the basis of an arrangement between the trader and that other person.
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Chapter 6
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Other consumer rights Fee for use of means of payment 122. (1) A trader shall not charge a consumer, in respect of the use of a given means of payment, a fee that exceeds the cost borne by the trader for the use of that means of payment.
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(2)Where— (a) a trader charges a consumer a fee that exceeds the cost borne by the trader as mentioned in subsection (1), and (b) the consumer pays that fee, the trader shall reimburse the consumer to the extent of the excess paid.
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(3)Any provision of a contract which requires the consumer to pay a fee that exceeds the cost borne by the trader as mentioned in subsection (1) is unenforceable to the extent of the excess charged.
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(4)A trader who contravenes subsection (1) commits an offence.
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(5)If a trader fails to comply with the obligation to reimburse the consumer in accordance with subsection (2), the trader shall be liable in damages for any loss or damage suffered by the consumer as a result of that failure.
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(6)In case of dispute, it is for the trader to show that a fee charged in respect of the use of a given means of payment does not exceed the cost borne by the trader for the use of that means of payment.
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(7)Nothing in this section shall affect the operation of Regulation 86 of the European Union (Payment Services) Regulations 2018 ( S.I. No. 6 of 2018 ).
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Additional payments 123. (1) Before a consumer is bound by a contract or an offer, the trader shall seek the consumer’s express consent to any payment additional to the payment or other consideration agreed for the trader’s main obligation under the contract.
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(2)There is no express consent by the consumer under subsection (1) if that consent is inferred from the use of a default option which the consumer is required to reject in order to avoid the additional payment.
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(3)Where a trader receives a payment from a consumer that contravenes subsection (1), the trader shall reimburse the consumer for the payment.
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(4)Any provision of a contract which requires the consumer to make a payment that contravenes subsection (1) is unenforceable.
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(5)A trader who contravenes subsection (1) or (3) commits an offence.
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(6)If a trader fails to comply with the obligation to reimburse the consumer in accordance with subsection (3), the trader shall be liable in damages for any loss or damage suffered by the consumer as a result of that failure.
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(7)In case of dispute, it is for the trader to show that— (a) the trader sought the consumer’s express consent to any payment additional to that agreed for the trader’s main obligation under the contract, and (b) consent was not inferred from the use of a default option which the consumer was required to reject in order to avoid the additional payment.
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Charges for communication by telephone 124. (1) Where a trader operates a telephone line for the purpose of enabling a consumer to contact the trader in relation to a contract concluded by the consumer with the trader, the trader shall ensure that the telephone line is available to the consumer at a charge that does not exceed the basic rate.
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(2)Where a trader operates a telephone line that contravenes subsection (1), and the consumer uses the line and pays more than the basic rate, the trader shall reimburse the consumer to the extent of the excess charged.
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(3)Any provision of a contract which requires the consumer to make a payment that contravenes subsection (1) is unenforceable.
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(4)A trader who contravenes subsection (1) commits an offence.
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(5)If a trader fails to comply with the obligation to reimburse a consumer in accordance with subsection (2), the trader shall be liable in damages for any loss or damage suffered by the consumer as a result of that failure.
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(6)In case of dispute, it is for the trader to show that calls to a telephone line operated by the trader for the purpose of permitting consumers to contact the trader in relation to a contract concluded with the trader were not charged at more than the basic rate.
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(7)In this section— “basic rate”, in relation to a telephone line operated by a trader for the purpose referred to in subsection (1), means: (a) where the telephone line uses a freephone number, nil; (b) where the telephone line uses a landline telephone number, the rate charged for a call to a landline telephone number; (c) where the telephone line uses a mobile telephone number, the rate charged for a call to a mobile telephone number; (d) where the telephone line uses a standard rate number, the rate charged for a call to a standard rate number; (e) where the telephone line does not fall within any of paragraphs (a) to (d), the rate charged for a call to a landline telephone number; “freephone number” means a non-geographic number (other than a mobile telephone number, a standard rate number or a premium rate number), in respect of which the charge for a call is paid for by the called party and not the caller; “landline telephone number” means a number from the national numbering scheme where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point;