Sending unsolicited goods to consumers purporting to provide that the goods are deemed purchased unless the recipient replies within a set time is inertia selling. Inertia selling is the act of demanding immediate or deferred payment or the return or safekeeping of supplied by the trader but not solicited by the consumer. There is no obligation to pay for unsolicited goods. The absence of a response and recipient does not constitute acceptance or provide consideration.
It is an offence for a person acting during business to demand or claim a right to payment in respect of unsolicited goods delivered. A threat to bring legal proceedings for payment or to place the recipient on a list of debtors is a criminal offence
Persons who receive unsolicited goods are entitled to use, deal with or dispose of them as if it was an unconditional gift where
- the goods were sent to the recipient with a view to them being acquired
- the recipient has no reasonable cause to believe that they were sent with a view to them being acquired for the purpose of a trade or business and
- had neither agreed to acquire nor return the goods.
The recipients can treat the goods as their property if the seller does not take possession of them within six months of receipt or after giving the sender notice that the end of the 30-day period if the seller has not taken the goods back, that they will become the property of the recipient
Distance Finance Contracts
There is a separate directive dealing with distance contracts providing financial services. This covers banking, insurance, payments and investment services. It applies when they are negotiated at a distance whether over the Internet, fax, telephone et cetera, where the parties are not simultaneously physically present.
The consumer has a right to withdraw within 14 days in the following cases
- when the contract has been signed before the consumer has received prior notice of the terms and conditions
- when the consumer has received the contractual terms and conditions but has been fairly induced to conclude the contract during the reflection period.
The period is 30 days in the case of life insurance and personal pension products
If the consumer exercises the right to withdraw having already agreed to the partial performance of the service, he may have to pay for the service rendered. If the service has been rendered in its entirety prior to the withdrawal, the right can no longer be exercised. Consumers must be informed in advance of the price to be paid and the basis upon which it is calculated. The right does not apply to products or services whose rates fluctuate in the market.
In the event of fraudulent use of a credit card, the consumer may request cancellation of the payment and reimbursement of the amount paid. There must be effective complaints procedures and provision for redress.
Timeshare and long-term holiday products
EU directive harmonises certain aspects of the market sales and resale of timeshare and long-term holiday products. here are minimum EU-wide standards for sale of property on a timeshare basis. The directive covers information in relation to the contract and procedures for cancelling. Other aspects are left to the member states.
Before the conclusion of a contract, consumers are entitled to information concerning the product they are about to purchase, rights they can exercise and all associated costs. They must be informed of whether they have a right to withdraw, its duration and conditions attaching to it.
The information is to be provided free of charge in a durable medium. It must be in a standard form and contain the information provided for in the directive. The minimum items specified must be included. There are provisions as to the language which applies.It must be clear comprehensible and accurate. Consumers may choose the language in which it is applied and require that u be that of their country of residence or nationality.
States must ensure that consumers are given notice of the obligation concerning pre-contact information when advertising material is received or in the context of participation in a commercial event.
The contract must be in writing on paper or another durable medium. It must comply with the requirements of the directive. At least one copy must be given at the time of the contract. The above provisions regarding the language apply.
There is a right of withdrawal by the consumer which may be exercised without any reason within 14 days. The right to withdraw must be described in the pre-contract information. If the obligation is not complied with, the withdrawal period is extended to a year and 14 days. If the pre-contractual information is not provided, it may be exercised for 3 months and 14 days.
Payments due for long-term holiday contracts are to be made in instalments which must be divided into yearly amounts of equal value. From the second instalment onwards, the consumer may terminate the contract without incurring a penalty by acting within 14 days of receiving the request for payment.
Agreements in relation to credit granted by the seller or a third-party may be cancelled if the right to withdraw is exercised. Clauses which are contrary to the rights of the purchaser or responsibilities of the seller are not binding.
There are harmonised requirements for package holidays and package tours. A package involves a service provider for a period of more than 24 hours sold at an inclusive price. Any brochure made available must clearly indicate
- the price
- destination, itinerary, means of transport
- type of accommodation
- passport and Visa requirements
- health formalities
- timetable for payment
- deadline for informing a consumer in event of cancellation
The information contained in the brochure binds the organiser. Before the contract is concluded, the organiser must provide in writing certain information on passports, visas, and health formalities.
Prior to the commencement of the journey, the organiser must supply in writing details of the
- times and places of intermediate stops and transport connections
- details of the organiser’s local representatives or emergency telephone number
- certain additional information in relation to minors
- information on optional contracts regarding insurance or assistance
If the organiser varies what is provided significantly (even where he has the right to do so) the consumer may withdraw without penalty or accept an amendment. If the consumer withdraws or the organiser cancels the package, the consumer is entitled to an alternative package or to be reimbursed the sums paid.
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