The perils or pitfalls of Home Visits
CONSUMER PROTECTION AND TRAPS TO AVOID FOR BOTH TRADER AND CONSUMER
A recent Court hearing at which we represented the successful party has highlighted the importance of businesses being aware of legislation and Regulations which directly affect them and, most importantly, their ability to recover money which they are owed.
The result of not complying with Regulations can be draconian and ignorance of them is no excuse or defence.
We represented the consumer and because the trader was found to have failed to comply with a Regulation the contract was found to be unenforceable and the trader’s claim was dismissed and they lost a considerable amount of money as a result.
The particular Regulation was The Cancellation of Contracts made in the Consumer’s Home or Place of Work etc. Regulations that originated, as is often the case, from the European Union and seeks to give greater protection to consumers when they sign contracts at home.
The purpose of the Regulation is to bring to an end the practices of some salesmen who almost take up residence in a customer’s home, refusing to leave until they secure the customer’s signature on the dotted line even though by that time their potential customers may have either climbed into their pyjamas or turned off the lights!
Until this Regulation was enacted, there were cases of, often very vulnerable, people being almost forced into signing contracts which were clearly not to their benefit and which could have cost them a great deal of money which they could ill-afford.
The Regulations apply to a contract, including a Consumer Credit Agreement, between a consumer and a trader which is for the supply of goods or services to the consumer by a trader and which is made;
– during a visit by the trader to the consumer’s home or place of work, or
– to the home of another individual, during an excursion organised by the trader away from their business premises, or
– after an offer made by the consumer during such a visit or excursion.
There are of course some exclusions to these Regulations in relation to certain financial products but the Regulations give the consumer the right to cancel a contract to which the Regulations apply within a cooling off period, effectively a cancellation period of seven days.
The trader must give to the consumer a written notice of their right to cancel the contract and such notice must be given at the time the contract is made.
The notice must be dated, indicate the right of the consumer to cancel the contract within the cancellation period, be easily legible, and contain information regarding the identity of the trader including the trading name, if any, the trader’s reference number, the code or the details to enable the contract or offer to be identified.
The notice must also contain a statement that the consumer has a right to cancel the contract if he wishes and that this right can be exercised by delivering or sending, including by electronic mail, a cancellation notice within seven days starting with the day of receipt of the notice in writing of the right to cancel the contract.
The information prescribed by the Regulations must also include the name and address including any electronic mail address as well as the postal address of the person to whom the cancellation notice may be given and the statement that notice of cancellation is deemed to be served as soon as it is posted or sent to a trader or in the case of an electronic communication from the date it is sent to the trader.
It should be noted that the cancellation notice sent by post is taken to have been served at the time of posting whether or not it is actually received and when the cancellation notice is sent by electronic mail it is taken to have been served on a date on which it is sent.
In short, if the consumer sends out a cancellation notice by post a trader may be caught even if they do not receive the notice of cancellation in the post.
There are some contracts where the consumer requests that work is started before the cancellation period expires, in which case the consumer must confirm their wishes to this effect in writing but if they then choose to cancel the contract they are obliged to pay for the goods and services supplied up the point of cancellation.
If a consumer pays a Deposit and then cancels the contract within the cancellation period then the trader must repay the Deposit.
This Regulation cannot be avoided and any term in a Contract which says it does not apply is not enforceable.
Even though you may think that this Regulation does not apply to your business, if you are in the habit of visiting your customers or meeting with them out of the office it might be a good idea for you to start providing your customers with the appropriate notice concerning their right to cancel as well as the appropriate cancellation notices.
The cost of a single sheet of paper will be considerably less than the potential risk of being unable to recover several thousand pounds just because you have failed to provide to the customer the appropriate notices, as our recent court case has shown.
by Derek Shores from the Wisbech office