changes to consumer protection
rules
Changes to consumer protection rules will
affect every retailer
From 1 October 2015, the Government is reforming
consumer law, pulling together the existing
framework set out in more than 100 separate pieces
of legislation. The Consumer Rights Act will affect
all retailers of goods, services and digital content,
who will need to note the changes and review their
current terms and conditions.
thrings.com
First tier
New short-term right to reject: the Act introduces a new
short-term right to reject, which reflects the existing right to
reject non-conforming goods, and sets a deadline of 30 days
for its exercise, which usually runs from delivery. The trader
must provide a refund within 14 days, subject to the consumer
making the goods available for collection (or if agreed,
returning the goods) at the trader’s cost. [there are separate
rules for perishable goods]
Consumers will have a right to reject faulty
goods and get a refund within the first 30 days.
Alternatively, consumers can insist on a repair
but the retailer has only one attempt, then the
consumer can ask for a price reduction or a refund.
Trader’s right to repair: the trader can only request a repair
and the consumer can agree to this.
Our detailed briefing sets out the proposed new
framework of consumer law.
Is the short-term right to reject lost if the consumer requests
repair or replacement?
No. If the consumer requests or agrees to repair or
replacement, the time period stops running during a “waiting
period” while the goods are being repaired or replaced.
Main changes and provisions
Sale of Goods
The pre-contractual information: required by the Consumer
Contracts Regulations will be given contractual effect by
being deemed to form implied terms in the contract with the
consumer.
Delivery: there is a new longstop period for delivery of 30
days, unless a longer period is agreed when the contact is
formed. The goods will remain at the retailer’s risk until they
are delivered to, and come into the physical possession of, the
consumer.
Non-conforming goods: means if the goods do not meet the
standards as to satisfactory quality, fitness for purpose or the
requirements that they match their description, any sample or
the requirements stated in the contract.
What are the consumer’s rights if the goods are nonconforming?
The Act includes the two-tier remedy regime:
Consumer’s right to repair: the consumer can, alternatively,
insist on a repair (within or outside the 30 days).
The trader must be allowed a reasonable time to repair/
replace: once the consumer has requested a repair or
replacement, they must allow the trader a reasonable time
to attempt this, unless to do so would cause significant
inconvenience to the consumer.
Second tier
Once the short-term right to reject is lost, the consumer has
the right to repair or replacement.
Only one attempt to repair or replace: The Act includes the
two tier statutory remedy regime but the consumer need only
accept one repair or replacement before moving on to the
remedies of price reduction or rejection (now termed the final
right to reject) and refund.
Final right to reject: The consumer has a right to choose
between keeping the goods and receiving a partial refund
(a price reduction) and exercising the final right to reject the
goods and receiving a refund.
changes to consumer protection
rules
thrings.com
Deductions for use: if the consumer exercises the right to
reject after the first six months, any refund to the consumer
may be reduced by a deduction for the use the consumer has
had of the goods.
Unfair consumer contract terms
Digital content
UCTA veto on attempts to limit liability reproduced: many
will recall the Unfair Contract Terms Act 1977 (UCTA), which
is replaced as regards consumers. Like UCTA, the Act includes
absolute vetoes on attempts to exclude or restrict liability for
breach of the implied statutory terms, for example, goods to be
of satisfactory quality. Attempts to exclude liability for a failure
to perform contractual obligations other than the implied
terms are subject to a fairness test (rather than the UCTA
reasonableness test).
There are new rules on the rights and remedies for digital
content, which must comply with certain standards which
broadly reflect the standard for goods.
No right to reject: Unlike with goods, there is no right to
reject digital content, and no requirement that the consumer
must delete the digital content from his device.
A consumer has the following rights: the right to repair or
replacement; or if repair and replacement are not possible or
do not resolve the fault, the right to a price reduction (up to
the full amount of the price).
Services
A consumer has certain new remedies in the case of nonconformity with the contract.
The Act supplies a complete code on unfair terms in consumer
contracts:
Wider concept of “unfairness”: the Act’s prohibition on
unfairness is not restricted to limitations of liability, but
extends to any contractual term (not individually negotiated)
which, contrary to good faith, causes an imbalance between
the rights of parties to the detriment of the consumer. That
excludes the price or subject matter, both of which can be
excluded from the application of the fairness test provided they
are “transparent and prominent”.
Grey list: the Act contains an “indicative and non-exhaustive”
Non-conforming services: A service is taken not to conform to list of contract terms which may be determined to be unfair,
the contract where it is not performed with reasonable skill and depending on the context. This “grey list” covers 20 commonly
encountered terms, including penalty clauses and price
care or breach of a pre-contract representation.
escalation clauses.
First tier
In this case, the consumer has the right to require repeat
performance.
Second tier
Right to a price reduction: If repeat performance is
“impossible” or not done in a reasonable time, the consumer
has a right to a reduction in price.
Consumer Contracts Regulations
(in force 13 June 2014)
The consumer’s right to information and cancellation within 14
days for online sales is not affected.
For further information please contact
Andy Braithwaite
The consumer has the right to a price reduction when the
services are not provided within a reasonable time.
Brett Lambe
PartnerSolicitor
0117 930 9522
0117 930 9580
abraithwaite@thrings.com
blambe@thrings.com
Thrings is the trading style of Thrings LLP, a limited liability partnership registered in England and Wales, registered number OC342744, and regulated by the Solicitors Regulation Authority.
A list of LLP members, together with others designated as partners, is displayed at its registered office: 6 Drakes Meadow, Penny Lane, Swindon SN3 3LL.