Pre-Contract Information

An Invitation to Purchase

An invitation to purchase is a concept unique to the legislation.  The European Courts have interpreted the concept broadly.  There may be an invitation to purchase, once there is sufficient information, whether by advertisement or otherwise, for the consumer to make the transactional decision.

The communication need not necessarily be an offer. The presence of the price will be important.  The characteristics of the product and its price must be given.

An invitation to purchase may be constituted

• at an e-commerce website, which displays the prices of the product;
• by advertisements with ring in purchase options;
• advertisements with products and price displayed in a shop.

Advertisements in themselves without sufficiently specific information to enable a purchase, are unlikely to constitute invitations to purchase.

Required Disclosure Prior to Invitation to Purchase

A trader must disclose certain material information in relation to an invitation to purchase.  An invitation to purchase is a representation by the trader in a consumer transaction, that indicates the characteristics of a product, includes its price and enables the consumer to purchase the product.

The requisite consumer information required will depend on the circumstances.  The context, the medium, the circumstances and the nature of the product and market will be considered.  The main characteristics only need be described.  What is or is not misleading, will depend on the circumstances.

The requirements in relation to information are in addition to other statutory requirements that may apply to particular products or services. Distance and door-to-door sales require further and more specific information, which will include the below items. Since, 2013, there are requirements in relation to the information to be given to consumers in on-premises sales, which largely duplicate the below requirements.

Material Information to be Furnished

The following material information must be furnished unless it is already apparent to the consumer in the context of the commercial practice.

• the main characteristics of the product, to an extent appropriate to the medium and the product;
• the geographical address of the trader and his identity; if the trader is acting as an agent of another, the geographical address and identity of that other;
• the price of the product, including taxes;
• if the product is such that the price cannot reasonably be calculated in advance, the manner of calculation must be set out;
• any freight, delivery or postal charges applicable in relation to the product; if they cannot reasonably be calculated in advance, a statement that such charges will apply and be payable by the consumer;
• the handling of consumer complaints relating to the product or the arrangement for payment, delivery, and performance, if they do not meet the standard of care and skill that the trader may reasonably be expected to exercise in respect of consumers or the general principle of good faith in the trader’s field of activity;
• if applicable, the legal rights of a consumer, contractual or otherwise, to withdraw from or cancel the transaction.

Distance Sales, Internet and Off Premises Sales

Distant sales are subject to detailed regulation. The rules apply to email, Internet, telesales and catalogue selling. Contracts concluded away from a business premises such as at the doorstep or over the internet, can be generally cancelled within seven days.

The scope of the legislation was expanded significantly in 2013, to cover contracts made at a workplace, home, or during an excursion organised by the seller (unless the seller’s visit was requested). The cancellation rights were enhanced.

There is a cooling off period, during which, the contract can be cancelled. The contract can be cancelled, generally within seven days. In this event, sums paid must be returned. The contract cannot be enforced unless certain detailed information is furnished within 30 days, including information in relation to that right.

Before a consumer is bound by a contract or an offer, the consumer’s express or explicit consent is required for any payment, additional to that for the trader’s main obligation.  Consent may not be taken from a default option which the consumer must specifically reject in order to avoid the obligation to pay.

The consumer must positively agree to pay. A pre-ticked box is accordingly not permitted in relation to the obligation to pay.These requirements are set out below and discussed in more detail in other articles.

On-Premises Contract

The requirements to furnish certain information prior to contract now applies to on premises sales as well as distance sales. The requirements for confirmation of the contract and the general cooling off period do not apply.

Traders must give prescribed information to the consumer before the consumer is bound by an on-premises contract.  The information must be set out in a clear and comprehensible manner unless the information is already apparent from the contract.

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 is part of the contract and may not be altered without the agreement of the trader and consumer.

Required Information for On-Premises Contract

The information to be provided is as follows:

• the main characteristics of the goods or services to the extent appropriate to the medium and to the goods or services
• the identity of the trader, including the trader’s name and legal identity;
• the geographical address at which the trader is established and the trader’s telephone number;
• the total price of the goods or services inclusive of taxes;
• where the nature of goods or services is such that the price cannot be reasonably calculated in advance, the manner in which the price is to be calculated;
• where applicable, all freight, delivery or postal charges additional to the price referred to above or where they cannot be reasonably calculated in advance, the fact that charges may be payable;
• where applicable, the arrangements for payment, delivery, performance and the time by which the trader undertakes to deliver the goods or perform the service;
• where applicable, the trader’s complaint handling policy;
• 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 after sale services and commercial guarantees;
• 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 functionality including technical protection measures of digital content;
• where applicable, any relevant interoperability of digital content with hardware or software, of which the trader is or can reasonably be expected to be aware.

Exceptions

The on-premises obligations are subject to a number of exceptions.  The requirement to provide information about the existence of a legal obligation on the trader to supply goods in conformity with the contract and other consumer rights, applies to a sales contract only.  Certain of the obligations apply, only where applicable.  For example, where the relevant policies do not exist, the statements need not be provided.

If the information is apparent from the context, it need not be provided.  It may be available on packaging and signs etc. and this may suffice in many cases. The information obligation does not apply to contracts that involve day to day transactions and that are performed immediately when the contract is made.  This will typically apply to purchases in shops, restaurants, and other retail outlets.

The failure by the trader to comply with its obligations is an offence.  The regulatory authority may take civil or other action.

In some cases, details of the auctioneer instead of the seller may satisfy the information and trading details requirements, in the case of a sale by public auction.

Offence for 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.

Packaging Labelling and Pricing

There is a general requirement to display prices. There is also older legislation, which has been retained which specifically requires the display of prices and further information in a particualr manner, in the areas of hairdressing, motor vehicles, pre-packaged foods and intoxicating liquor. VAT legislation requires that the stated or displayed selling price include VAT and other taxes.

There is a significant amount of legislation dealing with the packaging and labelling of various products.  It is dealt with in more detail on another article and in articles relating to foodstuff, medicines and dangerous products.

Signs may not be displayed, which imply that buyers do not have the rights conferred by the Sale of Goods and Supply of Services Act.

It is an offence to make any false or misleading statement regarding goods or services whether in an advertisement or otherwise. It is an offence to publish a misleading advertisement.  The Competition and Consumer Protection Commission may apply to the court to have misleading advertisements prevented or restricted.

Regulations Requiring Price Display

The Minister, if he considers it to be in the interests of consumers, may make regulations requiring traders who supply a product, or a class or type of product, to display the price or charge to consumers of or for those products in any manner or form specified in the regulations. The current regulations are discussed in a separate article.

The regulations may;

• require prices or charges, or any combination of prices and charges, to be displayed in a single amount and inclusive of any charges, fees or taxes payable;
• require the price or charge displayed, or combined price and charge displayed, to state the range of prices or charges for the products, and
• prohibit the supply of the products to consumers at any price greater than the price or charge so displayed.

Regulations may make provision for different classes or types of products or traders. A regulation may apply to the whole State or to a prescribed geographical area of the State. The pre-Consumer Protection Act regulations in price display in the above mentioned sectors have were carried over. No general regulations have been made as of the end of 2016. However, the general obligation in respect of an invitation to treat, set out above apply.

A trader shall not, without reasonable cause, prevent a person from, or obstruct or interfere with that person in reading the prices displayed on or in relation to products supplied by the trader, or entering premises for the above purposes, if those premises are where the trader supplies those products. Contravention is an offence.

Sale by Weight

A grocery retailer who offers food for sale to consumers by weight (other than food packed for sale by its manufacturer or producer or by the person who supplied it for sale) shall

• provide a weighing scale, or weighing machine, that is in a public and prominent position on the premises where that food is sold, and subject to health and food safety considerations, is as near as reasonably possible to where that food is on display for sale, and
• allow any person purchasing, or about to purchase such food, to weigh it or observe its weighing on the weighing scale or weighing machine in a manner that allows the person to see the reading of the weight provided by the scale or machine and to be informed of the resultant price before payment.

Contravention is an offence.

Weights and Measures are dealt with in detail in another article.

Prescription of Consumer Information on or with Goods or in Advertisements

The Ministers for Jobs Enterprise and Innovation has the power to prescribe by regulations information which he considers it to be in the interest of consumers to be marked on or accompany a product, or a class or type of product. He may prescribe any stamps, marks, tags, and labels for use on those products and the manner of their use and/ or any information to accompany those products when they are supplied to consumers. The regulations may regulate or prohibit the supply of a prescribed product, or a product of a prescribed class or type.

If the Minister considers it to be in the interest of consumers that advertisements for a product, or a class or type of product, should contain or refer to any information relating to those products (or do both those things), the Minister may make regulations,  prescribing the product, or class or type of product, and that information, requiring traders who market or advertise those products to do either or both of the following, as the Minister considers necessary or appropriate, include that information in their advertisements and to do so in the manner and form specified in the regulation and /or specify in their advertisements the means by which that information may be obtained by a consumer.

Consumer Information Regulations

The regulations may apply to different classes or types of products or traders, different classes or types of advertisements, different circumstances, and different geographical areas of the State. The regulation may apply to the whole State or to a specified geographical area of the State.

The Minister may make regulations. if he is satisfied that in the context the average consumer would need the stamp, mark, tag, label or information in order to make an informed transactional decision and if such material information was withheld, omitted or concealed, it would be likely to cause the average consumer to make a transactional decision that he would not otherwise make.

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

Legislation

Sale of Goods Act 1893 56 & 57

Sale of Goods and Supply of Services Act 1980

The 2011 Report of the Sales Law Review Group,

Consumer Protection Act 2007 19/2007

Competition and Consumer Protection Act 2014 29/2014

Orders Re Price Display (retained)

Prices Act 1958.

Prices (Amendment) Act 1965

Prices (Amendment) Act1972

Orders made under Prices Acts 1958 and 1965 were carried over on repeal of the 1958 and 1965 Acts by 19/2007

Prices and Charges (Tax-inclusive Statements) Order 1973, S.I.

Charges (Hairdressing) Display Order 1976, S.I. No. 156 of 1976

Retail Prices (Food in Catering Establishments) Display Order 1984, S.I. No. 213 of 1984

Consumer Information (Advertisements) (Disclosure of Business Interest) Order 1984, S.I. No. 168 of 1984417

Consumer Information (Advertisements For Concert Or Theatre Performances) Order 1997, S.I. No. 103 of 1997

Retail Price (Diesel and Petrol) Display Order 1997, S.I. No. 178 of 1997

Retail Price (Beverages in Licensed Premises) Display Order 19/2007

European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003, S.I. No. 11 of 2003

European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) (Amendment) Regulations 2005, S.I. No. 71 of 2005

European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004, S.I. No. 853 of 2004

Circuit Court Rules (Consumer Protection Act 2007) 2008, S.I. No. 585 of 2008

European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010, S.I. No. 555 of 2010

European Communities (Unfair Terms in Consumer Contracts) Amendment) Regulations 2013, S.I. No. 160 of 2013

European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014, S.I. No. 250 of 2014

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2016, S.I. No. 336 of 2016