Distance Sales

Distance and Off-Premises Sales

In distance and off-premises sales, the trader must provide specified information both pre-contract and post contract. Before a consumer is bound by an off-premises contract or offer, the trader must provide specified information.

The information must be apparent to a typical or average consumer who is reasonably well informed and reasonably observant.  The totality of what is provided, including brochures and leaflets etc., is relevant to whether the requirements have been complied with. The information provided may become part of the contract, in which case, it may not be altered without the agreement of the trader and consumer.

• the main characteristics of the goods or services to the extent appropriate to the medium and to the goods or services concerned;
• the identity of the trader, including the trader’s trading name;
• if the trader is acting on behalf of another, the geographical address and identity of that other trader;
• the geographical address at which the trader is established; the telephone number, fax and e-mail address where available, to enable the consumer to contact the trader quickly and communicate efficiently;
• the geographical address of the place of business of the trader to which the consumer may address complaints, if different to the above;
• where the trader acts on behalf of another, the place of business of that other, to which the consumer may address complaints;
• the total price of the goods or services, inclusive of tax
• where the nature of the goods or service is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
• where applicable, additional freight, postal charges and other costs; where those charges cannot reasonably be calculated in advance, the fact that such charges may be made;

Further Required Information I

The following information is also required;

• in the case of contracts of indeterminate duration or containing a subscription, the total cost per billing method, where contracts are charged at a fixed rate, the total monthly costs or where the total cost cannot reasonably be calculated in advance, the manner in which the price is to be calculated;
• the cost of using the means of distance communication, used for the conclusion of the contract, where this is other than at the basic rate;
• arrangements for the payment, delivery, performance and time by which the trader undertakes to deliver the goods or perform the service;
• where applicable, the trader’s complaint handling policy;
• where a right to cancel exists, the conditions, time limit, and procedures for exercising that right in accordance with the legislation;
• where applicable, that the consumer will have to bear the cost of returning the goods in case of cancellation and in the case of distance contracts, if the goods by their nature cannot normally be returned by post, the cost of returning the goods;
• where the consumer exercises the right to cancel after having made a request in accordance with the regulations, that the consumer is liable to pay the trader’s reasonable costs in accordance with the regulations;
• where there is right to cancel the contract, the model form of cancellation certificate must be provided.

Further Required Information II

The following information is also required;

• where the right to cancel the contract does not apply under the regulations, confirmation that the consumer will not benefit from that right or where applicable, the circumstances in which the consumer loses that right;
• in the case of a sales contract, the existence of a legal obligation on the trader to supply goods that are in conformity with the contract;
• where applicable, the existence and conditions of customer assistance, after sale services and commercial guarantees;
• the existence of relevant codes of practice where applicable, how copies of such codes can be obtained;
• the duration of the contract, where applicable or if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating it;
• where applicable, the minimum duration of the consumer’s obligations under the contract;
• where applicable, the existence and conditions of deposit or other financial guarantees to be paid or provided by the consumer at the request of the trader;
• were applicable, the functionality including applicable technical protection measures of digital content;
• where applicable, any relevant interoperability of digital content with hardware and software of which the trader is or can reasonably be expected to be aware;
• where applicable, the possibility of having recourse to an out of court complaint and redress mechanism, to which the trader is subject and the methods for having access to it.

Pre-Contract Information I

Before a consumer is bound by a distance contract, the information set out above must be provided in plain and intelligible language and in a way appropriate to the means of distance communication used. The information must be provided before the contract and promptly after it has been formed.  The information above is deemed to form part of the contract.  It cannot be varied without the consent of both parties.

The cancellation form must be provided where the right of cancellation exists (as is generally the case). The prescribed form of cancellation form should be provided. The costs associated with the return are not to apply when the information regarding such cost etc. has not been provided.  The onus is on the trader to prove compliance.

In the case of a distance contract, it is enough for the trader to make the information available, rather than provide it.  Accordingly, the information may be set out on a website. The information must be in plain and intelligible language and be presented in a way appropriate to the means of distance communication used.

A trader who uses telephone contact with the consumer with a view to concluding a distance contract must disclose at the beginning of the call, trader’s identity, the identity of any third party on whose behalf the trader acts and the commercial purpose of the call.

Confirmation re Payment

Where a distance contract is concluded on an e-commerce site, the trader must ensure that there is set out clearly and legibly prior to completion of the ordering process, whether any restrictions on delivery or limitation on the means of payment are applicable.

If the contract requires the consumer to make payments, the trader must ensure that the consumer is made aware in a clear and prominent manner prior to placing the order, of the requisite information regarding the goods, price, and charges, as set out above.

Before the order is placed, the customer is to acknowledge that the order implies an obligation to pay. Where the entry of the contract and the making of the order involves clicking a button or similar function, it must be clearly and legibly marked with words, making it clear that the obligation to pay immediately arises.

Confirmation of Distance Contract

A trader who concludes a distance contract must provide confirmation of the concluded contract in a durable medium.  All the information set out above is required, unless that information has already been provided to the consumer in a durable medium prior to the contract.  Where applicable. This must include the consumer’s acknowledgement of the loss of the right to cancel, in the case of digital contract content which is not supplied in a tangible medium and where the performance has begun, with the prior consent of the consumer.

Confirmation must be provided within a reasonable period after the conclusion of the contract, and at the latest,

• at the time of the delivery of goods or before
• the commencement of performance of a service.
• the supply of digital content other than through a tangible medium.
• the supply of utilities (gas, electricity or water) not supplied in a limited volume or the supply of district heating).

Once the contract is entered, the required confirmation of information must be provided promptly.  A copy of the signed contract may be provided, in the case of an off-premises contract with a consumer.

The copy of the contract or confirmation must be provided in paper form or in another durable medium, with the consumer’s agreement.  The confirmation provided by the trader must include an acknowledgment of the consumer’s right to cancel the contract.  Contravention is an offence.

Contravention of the obligations is an offence.  The onus is on the trader to prove that he has complied with the obligations.

Offence of Breach

Breach of the legislation is an offence.  It may be subject to civil enforcement by the Competition and Consumer Protection Commission.  The burden of proof is on the trader to show that the information requirements have been complied with.  Breach of the legislative obligations may also constitute a breach of contract.

Where the non-compliance relates to the costs of return, the consumer is not civilly liable for those additional charges. Breach of the legislative obligations may also constitute a breach of contract. Where the non-compliance relates to the costs of return, the consumer is not civilly liable for those additional charges.

References and Sources

Irish Texts

Consumer Law Rights & Regulation    Donnelly & White (2014)

Consumer Protection Act 2007 Annotated  Bird (2008)

Consumer Rights Long (2004)

Commercial & Consumer Law: Annotated Statutes O’Reilly, P (2000)

UK Texts

Consumer Sales Law: The Law Relating to Consumer Sales and Financing of Goods 3rd ed

John MacLeod, James Devenney (2019)

Electronic Consumer Contracts in the Conflict of Laws 2nd ed Zeng Sophia Tang (2018)

The Law of Consumer Redress in an Evolving Digital Market: Upgrading from Alternative to Online Dispute Resolution Pablo Cortes (2017)

Blackstone’s Statutes on Commercial & Consumer Law 2017-2018 Francis Rose

Consumer and Trading Standards: Law and Practice 2017 Bryan Lewin, Jonathan Kirk

Woodroffe and Lowe’s Consumer Law and Practice Woodroffe and Lowe’s Consumer Law and Practice 10th ed Geoffrey Woodroffe, Chris Willett, Christian Twigg-Flesner (2016)

Butterworths Trading and Consumer Law Looseleaf Annual Subscription Deborah L. Parry, Roland Rowell (2016)

Butterworths Commercial and Consumer Law Handbook 8th ed Richard B. Mawrey, Tobias Riley-Smith (2015

Consumer and Trading Standards: Law and Practice 4th ed