Distance Selling
(Jersey) Law 2007
A LAW concerning the sale of goods
and services by mail, internet and other means of communication over distance.
Commencement
[see endnotes]
1 Interpretation
In this Law,
unless the context otherwise requires –
“Article 6(4) information” means, in
the context of a provision that refers to a distance contract, the information
that according to Article 6(4) is the information to be provided in
respect of the contract;
“business” includes a trade or profession;
“consumer” means, in relation to a distance
contract, the person who, as a party to the contract, is to be supplied with
goods or services under the contract;
“credit” includes a cash loan and any other
form of financial accommodation, and for this purpose cash includes money in
any form;
“credit provider” is a person who grants
credit under a personal credit agreement or related credit agreement;
“distance
contract”
has the meaning set out in Article 2;
“fixed-sum credit” means credit that is not
running-account credit, (running-account credit being credit that, under the
terms of the agreement under which it is provided, is available from time to
time in the form of cash, goods or services, or a combination of any of those
things);
“means of distance communication” means any
means of communication that is effective without the simultaneous physical
presence of the parties to the communication, and includes the means specified in
the Schedule;
“Member State” means a Member State of the
European Union;
“Minister” means the Minister for Economic
Development, Tourism, Sport and Culture;
“period for performance” means the period
that applies under Article 17(1);
“personal credit agreement” means an
agreement between a person who is a consumer under a distance contract and any
other person, being an agreement under which the latter provides the consumer
with credit of any amount;
“Regulation” means Regulation made under
this Law;
“related credit agreement” means an
agreement under which fixed-sum credit that fully or partly covers the price
under a distance contract is granted by the supplier under the contract (or by
another person, under an arrangement between that person and the supplier);
“supplier” means, in relation to a distance
contract, the person who, as a party to the contract, is to supply goods or
services under the contract;
“working day” means a day other than Christmas
Day or Good Friday, and other than a Saturday, Sunday or bank holiday.[1]
2 Distance
contract
(1) For
the purposes of this Law, a distance contract is a contract –
(a) for the supply of goods or services –
(i) by
a person acting in his or her commercial or professional capacity in relation
to that supply, and
(ii) to
a natural person acting in relation to that supply for purposes that are not
those of a business of the person; and
(b) concluded under an organized distance-sales
scheme.
(2) For
the purposes of paragraph (1), an organized distance-sales scheme is a
scheme –
(a) run by a person who, in relation to the
scheme, is acting in his or her commercial or professional capacity; and
(b) that, for the purposes of communication in
order to conclude any contract for supply under the scheme to a natural person acting
in relation to that supply for purposes that are not those of a business of the
person, uses exclusively one or more means of distance communication up to and
including the moment at which the contract is concluded.
3 Contracts
to which this Law does not apply
(1) This
Law does not apply to or in respect of a contract –
(a) for the sale, lease or other disposition of
an interest in land;
(b) for the construction of a building where the
contract also provides for a sale, lease, or other disposition, of an interest
in the land on which the building is constructed;
(c) relating only to a financial service;
(d) concluded by means of an automated vending
machine or automated commercial premises;
(e) concluded with a telecommunications operator
through the use of a public pay-phone;
(f) concluded at an auction;
(g) concluded before this Law comes into force;
(h) that the States may prescribe by Regulations.
(2) Nothing
in paragraph (1) affects the application of another provision of this Law
to a personal credit agreement, a related credit agreement, or any other
agreement for a financial service, if that provision expressly refers to such
an agreement or service.
(3) In
this Article –
“financial service”
means a service in the nature of banking, a service concerning credit,
insurance, personal pensions, investment or payment, or a service concerning
dealings in futures or options;
“land” means any
corporeal hereditament, including a building, and land covered with water, and
also includes any interest in land or water and servitudes or rights in, on or
over land or water.
4 Contracts
to which only part of this Law applies
(1) Articles 5
to 18 shall not apply to a contract that is a timeshare agreement.
(2) Articles 5
to 17(1) shall not apply to –
(a) a contract for the supply of food or
beverages; or
(b) a contract for the provision of
accommodation, transport, catering or leisure services, being a contract under
which the supplier undertakes to provide these services on a specific date or
within a specific period.
(3) Articles 17(2) to (7)
and 18 shall not apply to or in respect of a contract for a tourism
package that is sold or offered for sale in Jersey or in a Member State.
(4) In
this Article –
“timeshare agreement”
means an agreement under which a person as a member of a pool of users is entitled
to the use of living accommodation located in Jersey or elsewhere, being
use –
(a) at least partly for the purposes of leisure;
(b) for a specified or ascertainable fraction of
each year; and
(c) during a period of not less than 3 years;
“tourism package”
means the planned combination of at least 2 of the following components when
sold or offered for sale at a global or inclusive price and when the components
so combined span in their execution a period of more than 24 hours or
include overnight accommodation –
(a) transport;
(b) accommodation;
(c) one or more other tourist services not
ancillary to transport or accommodation but, alone or together, accounting for
a significant proportion of the value of the combination.
(5) For
the purposes of the definition of a tourism package in paragraph (4), a combination
of components is no less a tourism package –
(a) because a separate account is created for
any of the components; or
(b) because the combination is arranged partly
or wholly in accordance with the consumer’s peculiar instructions as to
one or more of the components.
5 Information
before conclusion of contract
(1) Subject
to paragraph (5), in good time before the conclusion of a distance contract
with a consumer for the supply of goods or services the supplier shall provide
to the consumer the following information –
(a) the identity of the supplier;
(b) the address of the supplier, if the contract
requires payment in advance;
(c) the main characteristics of the goods or
services;
(d) the price of the goods or services including
all taxes;
(e) the delivery costs, if there are any;
(f) the arrangements for payment;
(g) the arrangements for delivery or
performance;
(h) if the consumer has a right to cancel the
contract under Article 8, notice that the consumer has such a right;
(i) if the contract is for a supply to be made
indefinitely or recurrently, the minimum duration of the contract;
(j) the cost to the consumer of using the
means of distance communication, whether in respect of the contract or in the
negotiations for the contract, if this cost is calculated otherwise than at the
basic rate (being the rate for normal communications over the same distance and
at the same time and date and using the same provider of communications, the
same method, and analogous terminals);
(k) the period for which the offer, or the price,
in respect of the contract remains valid;
(l) any other information that the States
may prescribe by Regulations.
(2) If
a supplier proposes that, in the event that goods or services to be supplied
under a distance contract were unavailable, the supplier would supply substitute
goods or services of equivalent quality and price, the supplier shall, in good
time before the conclusion of the contract, inform the consumer –
(a) of that conditional proposal; and
(b) that, in the case of the supply of
substitute goods, the cost of returning the substitute goods to the supplier if
the consumer cancelled the distance contract would be met by the supplier.
(3) The
supplier shall provide the information required by paragraph (1), (2), (4)
or (5) in a clear and comprehensible manner appropriate to the means of
distance communication used, with due regard in particular to the principles of
good faith in commercial transactions and the principles governing the
protection of those who do not have full capacity to enter contracts.
(4) Subject
to paragraph (5), the supplier shall make clear his or her commercial
purpose when providing the information required by paragraph (1).
(5) If
the means of distance communication used in communications in respect of the
contract, or in the negotiations for the contract, is the telephone, the
supplier shall make clear his or her identity, and his or her commercial
purpose, at the beginning of those communications with the consumer.
6 Written
and additional information
(1) The
supplier in relation to a distance contract shall, before the conclusion of the
contract, provide to the consumer in writing, or in another durable medium
accessible to the consumer, information in respect of the contract, being the
information referred to in paragraph (4).
(2) The
supplier shall do so in a document that is separate from the contract itself.
(3) Despite
paragraph (1), the supplier may, except in the case of the information
referred to in paragraph (4)(i)(vi), satisfy the requirements of
paragraph (1) by providing the information referred to in
paragraph (4) at, or in good time after, the conclusion of the contract,
and in any event –
(a) during the performance of the contract, in
the case of a contract for the supply of services; or
(b) at or before the time of delivery of the
goods, in the case of a contract for the supply of goods where the delivery is
not to a party other than the consumer.
(4) The
information is the following –
(a) the identity of the supplier;
(b) the address of the supplier, if the contract
requires payment in advance;
(c) the main characteristics of the goods or
services;
(d) the price of the goods or services including
all taxes;
(e) the delivery costs, if there are any;
(f) the arrangements for payment;
(g) the arrangements for delivery or
performance;
(h) if the contract is for a supply to be made indefinitely
or recurrently, the minimum duration of the contract;
(i) if the consumer has a right to cancel
the contract under Article 8, information about the conditions under which
and the procedures by which the right to cancel in accordance with
Article 8 is to be exercised, including –
(i) notice
that the consumer has a right to cancel the contract under Article 8,
(ii) the
address for giving the notice of cancellation,
(iii) the
name of the person (if any) nominated by the supplier as a person to whom the
consumer may give the notice of cancellation,
(iv) if
the contract requires (or the supplier intends that, when concluded, the
contract will require) that on cancellation the consumer would return any goods
supplied to the supplier, notification of that requirement,
(v) information
as to whether, on cancellation, it is the consumer or the supplier who would be
responsible under this Law for the cost of returning any goods to the supplier
or of the supplier’s recovering any goods,
(vi) in
the case of a contract for the supply of services, information as to how the
right to cancel may be affected by the consumer’s agreeing to the start
of the performance of the services before the end of the cancellation period
specified in Article 10;
(j) the geographical address (if different
from the address referred to in sub-paragraph (b)) of the place of
business of the supplier, being the address to which the consumer may address
any complaints;
(k) details of any after-sales services and any guarantees;
(l) if the contract is of an unspecified
duration or of a duration exceeding one year, the conditions for exercising a
contractual right (if any) to terminate the contract;
(m) any other information that the States may
prescribe by Regulations.
7 Services
performed through means of distance communication
(1) Article 6
does not apply to a distance contract for the supply of services that are
performed through the use of a means of distance communication, if those
services are supplied under the contract on only one occasion and are invoiced
to the consumer by the operator of the means of distance communication.
(2) However,
the supplier shall, on demand by the consumer who is a party to a contract
referred to in paragraph (1), give the consumer the geographical address
of the place of business of the supplier to which the consumer may address any
complaints.
8 Right
to cancel
(1) Subject
to Article 11, a consumer may give notice of cancellation of a distance
contract.
(2) Except
as otherwise provided by this Law, the effect of a consumer’s giving
notice of cancellation of a distance contract is, if the notice is given in
accordance with this Law, that the contract shall be treated as if it had not
been made.
(3) A
notice of cancellation is given in accordance with this Law if –
(a) it is given within the cancellation period
specified, as the case requires, in Article 9 or 10;
(b) it is given to the supplier or to a person (if
any) nominated by the supplier as a person to whom the consumer may give the
notice of cancellation;
(c) it is a notice in writing or in another
durable medium accessible to the supplier (or to the nominated person);
(d) however expressed, it indicates the
intention of the consumer to terminate the contract; and
(e) it has been left, or sent, as referred to in
paragraph (4), (5), (6) or (7).
(4) If
the consumer leaves the notice at the supplier’s or nominated
person’s address last known to the consumer and the notice is addressed
to the supplier or nominated person by name, the notice is taken to have been
given on the day on which it was left.
(5) If
the consumer sends the notice by post to the supplier’s or nominated
person’s address last known to the consumer and the notice is addressed
to the supplier or nominated person by name, the notice is taken to have been
given on the day on which it was posted.
(6) If
the consumer sends the notice by facsimile to the supplier’s or nominated
person’s business facsimile number last known to the consumer, the notice
is taken to have been given on the day on which it was sent.
(7) If
the consumer sends the notice by electronic mail to the supplier’s or nominated
person’s business electronic mail address last known to the consumer, the
notice is taken to have been given on the day on which it was sent.
9 Cancellation
period: goods
(1) For
the purposes of Article 8, the cancellation period in the case of a
distance contract for the supply of goods shall begin with the day on which the
contract is concluded and shall end as provided in paragraph (2), (3), (4)
or (5).
(2) If
the supplier has complied with Article 6 in respect of a distance contract
for the supply of goods, the cancellation period shall end on the expiry of the
period of 7 working days beginning with the day after the day on which the
consumer receives the goods.
(3) If
a supplier has not complied with Article 6 in respect of a distance
contract for the supply of goods but provides the Article 6(4) information
to the consumer –
(a) in writing or in another durable medium
accessible to the consumer; and
(b) within the period of 3 months beginning
with the day after the day on which the consumer receives the goods,
the cancellation period shall end
on the expiry of the period of 7 working days beginning with the day after
the day on which the consumer receives the information.
(4) In
a case to which neither paragraph (2) nor (3) applies, the cancellation
period shall end on the expiry of the period of 3 months and
7 working days beginning with the day after the day on which the consumer
receives the goods.
(5) In
the case of a distance contract for the supply of goods for delivery to a third
party, paragraph (2), (3) or (4) shall apply as if the consumer had
received the goods on the day on which they were received by the third party.
10 Cancellation
period: services
(1) For
the purposes of Article 8, the cancellation period in the case of a
distance contract for the supply of services shall begin with the day on which
the contract is concluded and shall end as provided in paragraph (2), (3),
(4) or (5).
(2) If
the supplier complies with Article 6 in respect of a distance contract for
the supply of services and does so on or before the day on which the contract
is concluded, the cancellation period shall end on the expiry of the period of
7 working days beginning with the day after the day on which the contract
is concluded.
(3) Except
in the case to which paragraph (4) applies, if a supplier has not complied
with Article 6 in respect of a contract for the supply of services on or
before the day on which the contract is concluded but provides the
Article 6(4) information to the consumer –
(a) in writing or in another durable medium
accessible to the consumer; and
(b) within the period of 3 months beginning
with the day after the day on which the contract is concluded,
the cancellation period shall end
on the expiry of the period of 7 working days beginning with the day after
the day on which the consumer receives the information.
(4) If
the performance of the contract has begun with the consumer’s agreement
before the expiry of the period of 7 working days beginning with the day
after the day on which the contract was concluded, and the supplier has not
complied with Article 6 in respect of the contract on or before the day on
which performance began, but provides the Article 6(4) information to the
consumer during the performance of the contract, the cancellation period shall
end –
(a) except as provided in
sub-paragraph (b), on the expiry of the period of 7 working days
beginning with the day after the day on which the consumer receives the information;
or
(b) if the performance of the contract is
completed before the expiry of the period referred to in sub-paragraph (a),
on the day on which the performance of the contract is completed.
(5) In
a case to which none of paragraphs (2), (3) and (4) applies, the
cancellation period shall end on the expiry of the period of 3 months and
7 working days beginning with the day after the day on which the contract
is concluded.
11 Exceptions
to right to cancel
Unless the parties to a distance
contract have agreed otherwise, the consumer shall not have the right to cancel
the contract under this Law –
(a) if
the contract is for the supply of services and the performance of the contract
has begun, with the consumer’s agreement, before the end of the
cancellation period specified in Article 10 and after the supplier has
provided the Article 6(4) information;
(b) if
the contract is for the supply of goods, or services, the price of which is affected
by financial market fluctuations that cannot be controlled by the supplier;
(c) if
the contract is for the supply of goods in a case where –
(i) the goods are made to the
consumer’s specifications (or otherwise personalized),
(ii) the supplier could not, for other
reasons to do with the nature of the goods, reasonably be expected to accept
their return, or
(iii) the goods are liable to deteriorate or
expire rapidly;
(d) if
the contract is for the supply of an audio or video recording or computer
software and the recording or software has been unsealed by the consumer;
(e) if
the contract is for the supply of a newspaper, magazine or other periodical;
(f) if
the contract is for a gaming, betting or lottery service; or
(g) in
a case that the States prescribe by Regulations.
12 Repayment
on cancellation, and return of security
(1) On
the cancellation of a distance contract in accordance with this Law, the
supplier shall reimburse (to the person by whom it was paid) any sum paid to
the supplier by or on behalf of the consumer under or in relation to the
contract, less any charge made in accordance with paragraph (5), but
otherwise free of any charge.
(2) The
reference to any sum paid on behalf of the consumer includes any sum paid by a
credit provider under a personal credit agreement with the consumer, being a
credit provider who is not the same person as the supplier.
(3) The
supplier shall make the reimbursement as soon as possible and in any case
within the period of 30 days beginning with the day on which notice of
cancellation was given.
(4) If
any security has been provided in relation to the distance contract, the
security interest thereby created shall, on cancellation of the contract in
accordance with this Law, be treated as never having had effect and the secured
party shall forthwith return any collateral that has been lodged with the
secured party solely for the purposes of the security.
(5) Subject
to paragraphs (6) and (7), the supplier may make a charge, not exceeding
the direct costs of recovering any goods supplied under the contract,
if –
(a) a term of the contract provides that the
consumer shall, if the consumer cancels the contract in accordance with this
Law, return any goods supplied; and
(b) the consumer does not comply with the term
or causes the goods to be returned at the expense of the supplier.
(6) Paragraph
(5) shall not apply if –
(a) the term is an unfair term; or
(b) the consumer cancels the contract in
circumstances where he or she has the right to reject the goods under a term of
the contract, including a term implied by virtue of any enactment or any other
law.
(7) Paragraph (5)
shall not apply to the cost of recovering any goods that were supplied as
substitutes for the goods ordered by the consumer.
(8) For
the purposes of paragraph (6)(a), a term of a contract shall be taken to
be unfair if –
(a) the consumer has had no effective say in the
drafting of the term or any redrafting of the term;
(b) the term causes, contrary to the principles
of good faith in commercial transactions, a significant imbalance in the rights
and obligations of the parties to the contract and arising under the contract;
and
(c) the imbalance is to the detriment of the
consumer.
13 Automatic
cancellation of related credit agreement
(1) On
the cancellation of a distance contract in accordance with this Law, the notice
of cancellation shall also have the effect of terminating any related credit
agreement from the time when the notice is given.
(2) On
the cancellation of a distance contract in accordance with this Law, the
supplier shall, if he or she is not the same person as the credit provider
under any related credit agreement, forthwith on receipt of the notice of
cancellation inform the credit provider that the notice has been given.
(3) If
a related credit agreement is terminated by virtue of
paragraph (1) –
(a) the credit provider shall reimburse (to the
person by whom it was paid) any sum paid by or on behalf of the consumer under,
or in relation to, the related credit agreement (not being a sum that the
supplier is obliged to reimburse under Article 12(1) nor any sum that, if
it has not already been paid, would have to be paid because of sub-paragraph (b));
(b) the related credit agreement shall, subject
to Article 14, continue in force so far as it relates to repayment of the
credit and payment of interest; and
(c) in other respects, the related credit
agreement shall be taken to be at an end.
(4) If
security has been provided under a related credit agreement, the security
interest thereby created shall, on cancellation of the relevant distance
contract in accordance with this Law, be treated as never having had effect and
the secured party shall return any collateral lodged with the secured party
solely for the purposes of the security.
14 Repayment
on cancellation of related credit agreement
(1) This
Article applies following the termination of a related credit agreement by
virtue of Article 13(1).
(2) If
the consumer repays the whole or a portion of the credit –
(a) in the case of credit repayable in one sum,
before the expiry of one month following the termination of the related credit
agreement; or
(b) in the case of credit repayable by
instalments, before the date on which the first instalment is due,
no interest shall be payable on
the amount repaid.
(3) In
the case of credit repayable by instalments, if the consumer does not pay the
whole of the credit before the date on which the first instalment is due, the
consumer shall not be liable to repay any of the unrepaid credit unless the
credit provider gives the consumer notice in writing stating the amounts of the
remaining instalments (recalculated by the credit provider as nearly as may be
in accordance with the agreement and without extending the repayment period).
(4) The
amounts referred to in paragraph (3) shall not include any sum other than the
principal and, in a case where interest is payable, the interest.
(5) If
security has been provided under a related credit agreement, the duty imposed
on the consumer to repay credit shall not be enforceable before the credit
provider has discharged any duty imposed on him or her by Article 13(4) to
return any collateral lodged with him or her as security.
15 Return
of goods after cancellation
(1) This
Article applies where a distance contract for the supply of goods is cancelled
in accordance with this Law after the consumer has acquired possession of any
goods under the contract, not being goods referred to in Article 11(b) to
(e) or (g).
(2) The
consumer shall be taken to have been under a duty throughout the period before
the cancellation to retain possession of the goods and to take reasonable care
of them.
(3) On
cancellation, the consumer shall be under a duty to restore the goods to the
supplier in accordance with this Article, and until that restoration to retain
possession of the goods and to take reasonable care of them.
(4) For
the purposes of discharging the duty to restore the goods, the consumer shall
not be under any duty to deliver the goods except at his or her own premises
and in pursuance of a request in writing, or in another durable medium
accessible to the consumer, from the supplier and made to the consumer either
before, or at the time when, the goods are collected from those premises.
(5) If
the consumer –
(a) delivers the goods (whether at his or her
own premises or elsewhere) to the supplier or any person nominated by the
supplier as a person to whom notice of cancellation of the distance contract could
have been given; or
(b) sends the goods at his or her own expense to
the supplier or that nominated person,
the consumer shall be discharged
from any further duty to restore the goods to the supplier or to retain
possession of the goods.
(6) If
the consumer delivers the goods in accordance with paragraph (5)(a), his
or her duty to take reasonable care of the goods shall cease on that delivery.
(7) If
the consumer sends the goods in accordance with paragraph (5)(b), he or
she shall be under a duty in the sending to take reasonable measures to ensure
that they are received by the person referred to in that sub-paragraph and do
not suffer damage or deterioration in transit, but his or her duty to take
reasonable care of the goods shall cease when he or she sends them.
(8) If,
at any time during the period of 21 days beginning with the day when notice
of cancellation was given, the consumer receives a request in accordance with
paragraph (4), and unreasonably fails to comply with it, his or her duty
to retain possession and take reasonable care of the goods shall continue until
he or she delivers or sends the goods as referred to in paragraph (5).
(9) If
within that period he or she does not receive such a request, his or her duty
to take reasonable care of the goods shall cease at the end of that period.
(10) However,
paragraphs (8) and (9) shall apply as if for the expression “period
of 21 days” in paragraph (8) there were substituted the
expression “period of 6 months” if –
(a) a term of the contract provides that if the
consumer cancels the contract, he or she must return the goods to the supplier;
and
(b) the consumer is not otherwise entitled to
reject the goods under the terms of the contract or by virtue of any law.
(11) If
security has been provided in relation to the cancelled distance contract, the
duty to restore goods imposed on the consumer by this Article shall not be
enforceable until the supplier has discharged any duty imposed on the supplier
by Article 12(4) to return on cancellation any collateral lodged with him
or her as security.
(12) A
breach of a duty imposed by this Article on a consumer shall be actionable as a
breach of statutory duty.
16 Return
of goods given in part-exchange
(1) This
Article applies on the cancellation of a distance contract in accordance with
this Law if the supplier had agreed (in respect of the contract) to take goods
in part-exchange (the “part-exchange goods”) and those goods have
been delivered to the supplier.
(2) Unless,
before the end of the period of 10 days beginning with the date of
cancellation, the part-exchange goods are returned to the consumer in a
condition substantially as good as when they were delivered to the supplier,
the consumer shall be entitled to recover from the supplier a sum equal to the
part-exchange allowance.
(3) In
this Article the “part-exchange allowance” means the sum agreed as
such in the cancelled distance contract or, if no such sum was agreed, such sum
as it would have been reasonable to allow in respect of the part-exchange goods
if no notice of cancellation had been served.
(4) If
the consumer recovers from the supplier a sum equal to the part-exchange
allowance, the title of the consumer to the part-exchange goods shall vest in
the supplier (if it has not already done so) on recovery of that sum.
17 Performance
(1) The
supplier in relation to a distance contract shall perform the contract within the
30 days beginning with the day after the day when the consumer sent the
relevant order to the supplier, or if those parties have agreed on another
period, that other period instead.
(2) Subject
to paragraph (7), if, because goods or services that were ordered are not
available, the supplier is unable to perform the relevant contract within the
contract’s period for performance, the supplier shall –
(a) inform the consumer of that inability; and
(b) reimburse (to the person by whom it was
paid) any sum paid to the supplier by or on behalf of the consumer under or in
relation to the contract.
(3) The
reference in paragraph (2)(b) to a sum includes any sum paid by a credit
provider who is not the same person as the supplier, being a sum paid under a
personal credit agreement with the consumer.
(4) The
supplier shall make the reimbursement as soon as possible and in any case
within the period of 30 days beginning with the day after the day on which
the period for performance expired.
(5) A
distance contract not performed within the period for performance shall be
treated as if it had not been made, except that the contract shall be treated
as being in force to the extent necessary for the enforcement of any rights of,
or remedies available to, the consumer as a result of the non-performance.
(6) If
security has been provided in relation to a distance contract, the security
interest thereby created shall, if the supplier is unable to perform the
contract within the period for performance, be treated as never having had
effect and the secured party shall return any collateral lodged with the
secured party solely for the purposes of the security.
(7) Despite
paragraph (2), in the circumstance that under a distance contract the supplier
is unable to supply, within the period for performance, the goods or services
ordered by the consumer, the supplier may perform the contract by making a
supply of substitute goods or services (respectively) of equivalent quality and
price if –
(a) the contract provided for the latter supply
in that circumstance;
(b) that supply is within the period for
performance; and
(c) before the conclusion of the contract the
supplier had, in relation to the contract, given the consumer the information
required by Article 5(2) in the manner required by Article 5(3).
18 Effect
of non-performance on related credit agreement
If a supplier is unable to perform a
distance contract within the period for performance –
(a) Articles 13
and 14 shall apply to any related credit agreement as if the consumer had given
a valid notice of cancellation in accordance with this Law on the expiry of the
period for performance; and
(b) the
reference in Article 13(3)(a) to Article 12(1) shall be read, for the
purposes of this Article, as a reference to Article 17(2).
19 Fraudulent
use of card for distance contract
(1) A
person who holds a payment card for purposes that are not those of a business
of the person shall be entitled to cancel a payment made on the card, being a
payment that was made –
(a) by fraudulent use of the card;
(b) in connection with a distance contract; and
(c) by another person not acting, and not to be
treated as acting, as the holder’s agent and not having, and not to be
treated as having, the authority of the holder.
(2) The
holder of the card shall be entitled to be recredited, or to have all sums
returned by the card issuer, in relation to a payment referred to in
paragraph (1).
(3) In
any proceedings, if the holder of a payment card alleges that any use made of the
card in connection with a distance contract by another person was not
authorized by the holder and the card issuer disputes this allegation it is for
the card issuer to prove that the use was in fact so authorized.
(4) This
Article applies only to and in respect of the use of a payment card that occurs
on or after the date on which this Article comes into force.
(5) In
this Article –
“card issuer” in
relation to a payment card means the owner of the card;
“payment card”
includes a store card that can be used for payment, a credit card, a charge
card and a debit card.
20 Inertia
selling
(1) Paragraphs
(2) and (3) apply if –
(a) unsolicited goods are sent to a person (“the
recipient”) with a view to his or her acquiring them;
(b) the recipient has no reasonable cause to
believe that they were sent with a view to their being acquired for the
purposes of a business; and
(c) the recipient has neither agreed to acquire
nor agreed to return them.
(2) The
recipient may, as between the recipient and the sender of the goods, use, deal
with or dispose of the goods as if they were an unconditional gift to the
recipient.
(3) The
rights of the sender of the goods to the goods shall be extinguished.
(4) A
person who, not having reasonable cause to believe there is a right to payment,
in the course of any business makes a demand for payment, or asserts a present
or prospective right to payment, for what the person knows are –
(a) unsolicited goods sent to another person for
purposes that are not those of a business of the latter person; or
(b) unsolicited services supplied to another
person for purposes that are not those of a business of the latter person,
shall be guilty of an offence and
liable to a penalty of level 4 on the standard scale.
(5) A
person who, not having reasonable cause to believe there is a right to payment,
in the course of any business and with a view to obtaining payment for what the
person knows are unsolicited goods sent or unsolicited services supplied as
referred to in paragraph (4) –
(a) threatens to bring any legal proceedings;
(b) places or causes to be placed the name of
any person on a list of defaulters or debtors or threatens to do so; or
(c) invokes or causes to be invoked any
collection procedure or threatens to do so,
shall be guilty of an offence and
liable to a fine.
(6) This
Article applies only to and in respect of goods sent or services supplied on or
after the date on which this Article comes into force.
(7) In
this Article –
“acquire” includes
hire;
“send” includes
deliver;
“sender”, in relation
to any goods, includes –
(a) any person on whose behalf or with whose
consent the goods are sent;
(b) any other person claiming through or under
that person; and
(c) any person who delivers the goods;
“unsolicited” means,
in relation to goods sent or services supplied to any person, sent or supplied
without any prior request made by or on behalf of the person.
21 Terms
in Law are paramount
(1) A
term in a distance contract is void to the extent that it is inconsistent with
a provision of this Law or of the Regulations.
(2) However
nothing in this Article renders void –
(a) a term that this Law or the Regulations
expressly permit or require to be included in a distance contract; or
(b) a term that a distance contract is taken to
contain by virtue of this Law or the Regulations.
(3) For
the purposes of this Article, in the case of a provision of this Law or of the
Regulations that specifies a duty or liability of a consumer in certain
circumstances, a term in a distance contract is inconsistent with that
provision if the term would, but for this Article, have the effect of imposing on
the consumer in those circumstances –
(a) an additional duty or liability;
(b) an additional element in the duty or
liability;
(c) a more onerous substitute duty or liability;
or
(d) something that the States prescribe for the
purposes of this paragraph by Regulations.
(4) The
States may by Regulations prescribe terms (not inconsistent with this Law) that
a distance contract is required to contain, or that a distance contract is
taken to contain.
(5) If
a distance contract does not set out a term that the States by Regulations
require the distance contract to contain, the distance contract shall be taken
to contain the term.
(6) In
a distance contract, a term that requires the consumer to return any goods
supplied to the consumer under the contract if he or she cancels it under Article 8
shall, in the event of cancellation by the consumer under Article 8, have
effect only for the purposes of Articles 12(5) and 15(10).
(7) A
term referred to in paragraph (6) shall not be taken, only because of the
operation of paragraph (3), to be inconsistent with the provisions of this
Law or of the Regulations.
22 Choice
of law
(1) If
a distance contract has a close connection with the territory of Jersey, this
Law shall apply in respect of the contract notwithstanding any term in the
contract that applies or purports to apply the law of a country, or territory,
that is neither a Member State nor Jersey.
(2) If
a distance contract has a close connection with the territory of a Member State,
this Law shall apply in respect of the contract notwithstanding any term in the
contract that applies or purports to apply the law of a country, or territory,
that is neither a Member State nor Jersey.
23 Orders
to enforce Law
(1) The
Attorney General may apply for an injunction (including an interim injunction),
or other order, against any person who appears to the Attorney General to be
responsible for a breach of this Law.
(2) The
Royal Court, on an application under this Article, may grant an injunction, or
other order, on such terms as it thinks fit to secure compliance with this Law.
24 Publicity
(1) The
Chief Trading Standards Officer may arrange for the publication, in such form
and manner as he or she considers appropriate, of details of –
(a) an undertaking given to the Chief Trading
Standards Officer by or on behalf of any person as to compliance with this Law;
(b) an application made by the Attorney General
for an injunction, or other order, for the purposes of enforcing this Law; and
(c) an undertaking given to, or injunction or
other order made by, the Royal Court in proceedings on such an application.
(2) The
Chief Trading Standards Officer may arrange for the dissemination, in such form
and manner as he or she thinks fit, of information and advice concerning the
operation of this Law.
25 Regulations
(1) The
States may by Regulations make provision for the purpose of carrying this Law
into effect and, in particular, but without prejudice to the generality of the
foregoing, for or with respect to any matter that the States may prescribe by Regulations.
(2) The
States may by Regulations amend the Schedule.
(3) Regulations
may contain such transitional, consequential, incidental or supplementary
provisions as appear to the States to be necessary or expedient for the
purposes of the Regulations.
26 Citation
This Law may be cited as the Distance
Selling (Jersey) Law 2007.