Consumer Rights Act 2022

An Act to amend and consolidate the law relating to rights and remedies in contracts between traders and consumers for the sale of goods and the supply of digital content and digital and other services, including by giving effect to Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019¹ on certain aspects concerning contracts for the supply of digital content and digital services, Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019² on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC and Articles 1, 3 and 4 of Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019³ amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules; to amend and consolidate the law relating to unfair terms in contracts between traders and consumers; to amend the Consumer Credit Act 1995 to make provision for rights and remedies in hire-purchase agreements and consumer-hire agreements; to amend section 12(13) of the Competition and Consumer Protection Act 2014; to amend section 459 of the Companies Act 2014; and to provide for related matters.

[7th November, 2022]

Be it enacted by the Oireachtas as follows:

PART 1 Preliminary and general

1. Short title and commencement

1. (1) This Act may be cited as the Consumer Rights Act 2022.

• (2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation

2. (1) In this Act—

“Act of 1995” means the Consumer Credit Act 1995;

“Act of 2007” means the Consumer Protection Act 2007;

“commercial guarantee”, in relation to a sales contract, means any undertaking by a trader or producer to a consumer (in addition to the trader’s legal obligation to supply goods in conformity with the sales contract) to reimburse the price paid or to repair, replace or service goods in any way if they do not meet the specifications or any other requirements not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before, the conclusion of the sales contract;

“compatibility” means the ability of digital content, digital services or goods to function with hardware or software with which digital content, digital services or goods of the same type is or are normally used without the need to convert the digital content, digital service, goods, hardware or software;

“consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession;

“delivery” means voluntary transfer of possession from one person to another;

“digital content” means data which are produced and supplied in digital form, including in particular computer programs, applications, video files, audio files, music files, digital games, e-books and other e-publications;

“digital content contract” means a contract under which—

• (a) a trader supplies or undertakes to supply digital content to a consumer, and

• (b) the consumer either or both:

• (i) pays or undertakes to pay the price of the digital content;

• (ii) provides or undertakes to provide personal data to the trader, other than where the personal data are processed by the trader only for the purpose of supplying the digital content in accordance with this Act or complying with any other legal requirement to which the trader is subject;

“digital service” means—

• (a) a service that allows a consumer to create, process, store or access data in digital form, or

• (b) a service that allows the sharing of or any other interaction with data in digital form uploaded or created by a consumer or other users of that service,

and includes in particular video and audio sharing and other file hosting, social media, and word processing and games offered in the cloud computing environment;

“digital service contract” means a contract under which—

• (a) a trader supplies or undertakes to supply a digital service to a consumer, and

• (b) the consumer either or both:

• (i) pays or undertakes to pay the price of the digital service;

• (ii) provides or undertakes to provide personal data to the trader, other than where the personal data are processed by the trader only for the purpose of supplying the digital service in accordance with this Act or complying with any other legal requirement to which the trader is subject;

“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, and with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

“district heating” means the supply of heat (in the form of steam, hot water or otherwise) to multiple buildings from a central source of production through a transmission and distribution system for the purpose of heating;

“durable medium” means any instrument which enables a consumer or a trader to store information addressed personally to that person in a way that is accessible for future reference, for a period of time adequate for the purposes of the information, and which allows the unchanged reproduction of the information stored;

“electronic communications service” means a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of a service providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of service—

• (a) a publicly available electronic communications service that provides an internet access service,

• (b) an interpersonal communications service, and

• (c) a service consisting wholly or mainly in the conveyance of signals such as a transmission service used for the provision of a machine-to-machine service and for broadcasting;

“enactment” has the same meaning as it has in the Interpretation Act 2005;

“financial service” means any service of a kind normally provided in the ordinary course of carrying on a banking business, an insurance business or a business of providing credit, personal pensions, an investment service or a payment service;

“functionality” means the ability of goods, digital content or digital services to perform their functions having regard to their purpose;

“goods” means any tangible movable items (other than money and any item sold by way of execution or otherwise by authority of law) and includes—

• (a) any tangible movable items that incorporate, or are inter-connected with, digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their functions, and

• (b) water, gas and electricity where they are supplied in a limited volume or set quantity;

“goods with digital elements” means any tangible movable items that fall within paragraph (a) of the definition of “goods”;

“internet access service” means a publicly available electronic communications service that provides access to the internet, and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used;

“interoperability” means the ability of goods, digital content or a digital service to function with hardware or software different from those with which goods, digital content or digital services of the same type are normally used;

“interpersonal communications service” means a service normally provided for remuneration that enables direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipients and does not include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service;

“Minister” means the Minister for Enterprise, Trade and Employment;

“number-based interpersonal communications service” means an interpersonal communications service which connects with publicly assigned numbering resources, namely, a number or numbers in national or international numbering plans, or which enables communication with a number or numbers in national or international numbering plans;

“off-premises contract” means any of the following contracts between a trader and a consumer:

• (a) a contract concluded in the simultaneous physical presence of the trader and the consumer in a place which is not the business premises of the trader;

• (b) a contract for which an offer was made by the consumer in the simultaneous physical presence of the trader and the consumer in a place which is not the business premises of the trader;

• (c) a contract concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer;

• (d) a contract concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;

“ownership” means the general property in goods and not merely a special or limited property;

“personal data” has the same meaning as it has in the Data Protection Act 2018;

“prescribed” means prescribed by regulations made by the Minister;

“producer” means a manufacturer of goods, an importer of goods into the European Union or any person purporting to be a producer by placing the person’s name, trade mark or other distinctive sign on the goods and includes any person acting in the name, or on behalf, of the producer;

“sales contract” (other than in Part 5) has the meaning assigned to it by section 11(1);

“service” means any service or facility (other than digital content, a digital service and a service provided under a contract of employment or apprenticeship) and includes in particular—

• (a) a service or facility for—

• (i) financial or other professional services,

• (ii) amusement, cultural activities, entertainment, instruction, recreation or refreshment,

• (iii) accommodation,

• (iv) communication, including electronic communication,

• (v) transport, travel, parking or storage,

• (vi) the care and maintenance of persons, animals or things, or

• (vii) the construction, maintenance or repair of buildings,

• (b) the supply of—

• (i) water, gas or electricity where it is not supplied in a limited volume or set quantity, or

• (ii) district heating,

and

• (c) any rights, benefits, privileges, obligations or facilities that are, or are to be, provided, granted or conferred in the course of a service;

“service contract” (other than in Part 5) means a contract (other than a sales contract and a contract for the sale of land (within the meaning of the Land and Conveyancing Law Reform Act 2009)) under which—

• (a) a trader supplies or undertakes to supply a service to a consumer, and

• (b) the consumer pays or undertakes to pay the price of the service;

“trader” means—

• (a) a natural person, or

• (b) a legal person, whether—

• (i) privately owned,

• (ii) publicly owned, or

• (iii) partly privately owned and partly publicly owned,

who is acting for purposes relating to the person’s trade, business, craft or profession, and includes any person acting in the name, or on behalf, of the trader.

• (2) In subsection (1), in the definitions of “digital content contract”, “digital service contract” and “service contract”, any reference to the consumer paying a price includes a reference to the consumer using by way of payment any facility by which payment is made.

• (3) It is for a trader claiming that an individual was not acting for purposes wholly or mainly outside that individual’s trade, business, craft or profession to show that the individual was not so acting.

• (4) A reference in this Act to the sale of goods includes a reference to the transfer of, or an undertaking to transfer, the ownership of those goods.

• (5) A reference in this Act to the supply of a service or a digital service includes a reference to the performance, rendering or provision of the service or of the digital service, as the case may be.

• (6) In Parts 2 to 4, a reference to a reasonable expectation shall be interpreted having regard objectively to the nature and purpose of the contract concerned, the circumstances of the case and the usages and practices of the parties to the contract.

3. Regulations

3. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

• (2) The Minister may make different regulations under this Act for different classes or description of consumer, trader or contract.

• (3) Regulations under this Act may contain such incidental, supplementary and consequential provision as appears to the Minister to be necessary or expedient for the purposes of the regulations.

• (4) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done under it.

4. Making of contract

4. (1) Subject to the enactments specified in subsection (2), a contract to which any of Parts 2 to 6 applies—

• (a) may be made—

• (i) in writing,

• (ii) by word of mouth, or

• (iii) partly in writing and partly by word of mouth,

or

• (b) may be implied from the conduct of the parties.

• (2) The enactments referred to in subsection (1) are—

• (a) sections 103 to 109,

• (b) sections 30, 32, 36, 57, 58 and 84 of the Act of 1995,

• (c) Regulations 8, 9 and 13 of the European Communities (Consumer Credit Agreements) Regulations 2010 (S.I. No. 281 of 2010), and

• (d) any other enactment that makes provision in relation to the making of a contract.

5. Contract terms may be more favourable to consumer

5. Nothing in this Act shall be construed as prohibiting the inclusion in a contract between a consumer and a trader of a term that is more favourable to the consumer than a right or remedy afforded to the consumer by or under this Act.

6. Powers of court in relation to remedies under Parts 2 to 4

6. (1) In any proceedings relating to a contract to which any of Parts 2 to 4 applies, the court, in addition to any other power that it may have, shall have power—

• (a) to make an order for the provision of a remedy that is specified in subsection (2), and

• (b) to make such incidental or ancillary order as it thinks fit.

• (2) The remedies referred to in subsection (1)(a) are any of the following remedies—

• (a) the repair or replacement of goods,

• (b) a reduction in the price of goods, digital content, a digital service or a service, and

• (c) a remedy for bringing digital content, a digital service or a service into conformity with the contract under which it is supplied.

• (3) In this section, “court” means—

• (a) the District Court,

• (b) the Circuit Court, or

• (c) the High Court.

7. Representations purporting to restrict rights of consumer: offences

7. (1) Subsections (2) and (3) apply to any representation likely to be taken as indicating that—

• (a) a right or the exercise of a right conferred by any of Parts 2 to 4, or

• (b) an obligation or a liability arising under any of those Parts,

is restricted or excluded otherwise than in accordance with this Act.

• (2) It shall be an offence for a trader to do any of the following things in relation to a representation to which subsection (1) applies:

• (a) to display on any part of any premises a notice that includes any such representation;

• (b) to publish or cause to be published an advertisement which contains any such representation;

• (c) to supply goods bearing, or digital content or a digital service displaying in any form, any such representation;

• (d) otherwise to furnish or to cause to be furnished a document including any such representation.

• (3) For the purposes of this section, the following shall be treated as a representation to which subsection (1) applies:

• (a) a representation to the effect that reimbursement will not be made for goods, digital content, a digital service or a service sold or supplied under a contract to which any of Parts 2 to 4 applies (any such goods, digital content, digital service or service so sold or supplied being referred to in this section as “relevant items”) that are not in conformity with the contract concerned;

• (b) a representation to the effect that reimbursement for relevant items that are not in conformity with the contract concerned will be made only in the form of credit notes or gift vouchers;

• (c) a representation to the effect that relevant items that are not in conformity with the contract concerned will not be replaced, repaired, remedied or otherwise brought into conformity with the contract concerned; or

• (d) a representation that is otherwise likely to be taken as indicating that—

• (i) a right or the exercise of a right conferred by any of Parts 2 to 4, or

• (ii) an obligation or a liability arising under any of those Parts,

is restricted or excluded otherwise than in accordance with this Act.

• (4) In this section, “representation” includes—

• (a) any oral, written, visual, descriptive or other representation by a trader, including any commercial communication, marketing or advertising, and

• (b) a notice or other document used or relied on by a trader in connection with a contract with a consumer.

8. Repeals and revocations

8. (1) The Acts specified in column (3) of Part 1 of Schedule 1 are repealed to the extent specified in column (4) of that Part of that Schedule.

• (2) The statutory instruments specified in column (3) of Part 2 of Schedule 1 are revoked to the extent specified in column (4) of that Part of that Schedule.

9. Savings

9. (1) Where, before the day on which section 12(1) comes into operation, a contract was concluded to which Part 2 would apply if it had been concluded on or after that day—

• (a) the Sale of Goods Act, 1893 and the Sale of Goods and Supply of Services Act 1980 shall continue to have effect in relation to the contract as if the amendments made by Part 1 of Schedule 6 had not been made, and

• (b) the European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003 (S.I. No. 11 of 2003) shall continue to have effect in relation to the contract notwithstanding the revocation of those Regulations by Part 2 of Schedule 1.

• (2) Where, before the day on which section 75(1) comes into operation, a contract was concluded to which Part 4 would apply if it had been concluded on or after that day, the Sale of Goods and Supply of Services Act 1980 shall continue to have effect in relation to the contract as if the amendments made by Part 1 of Schedule 6 inserting a new section 38A into that Act and amending section 47 of it had not been made.

• (3) Where, before the day on which section 97(1) comes into operation, a contract was concluded to which Part 5 would apply if it had been concluded on or after that day, the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013) shall continue to have effect in relation to the contract notwithstanding the revocation of those Regulations by Part 2 of Schedule 1.

• (4) Where, before the day on which section 127(1) comes into operation, a contract was concluded to which Part 6 would apply if it had been concluded on or after that day, the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. No. 27 of 1995) shall continue to have effect in relation to the contract notwithstanding the revocation of those Regulations by Part 2 of Schedule 1.

• (5) Where, but for section 150(2), the amendment made by section 150 (1) would apply in relation to a hire-purchase agreement, sections 74 to 79 of the Act of 1995 shall continue to have effect in relation to the hire-purchase agreement notwithstanding the repeal of those sections of the Act of 1995 by Part 1 of Schedule 1.

• (6) Where, but for section 151(2), the amendment made by section 151(1) would apply in relation to a consumer-hire agreement, section 88 of the Act of 1995 shall continue to have effect in relation to the consumer-hire agreement as if the amendment made by section 151(1) had not been made.

• (7) Where by virtue of this section an enactment continues to have effect in relation to a contract, hire-purchase agreement or consumer-hire agreement, the amendments of enactments made by Parts 9 to 11 and 14 (and any repeal of an enactment by this Act which relates to any of those amendments) shall not have effect in the application of those enactments to the contract or, as the case may be, hire-purchase agreement or consumer-hire agreement.

PART 2 Sales contracts

Chapter 1 Interpretation and application (Part 2)

10. Interpretation (Part 2)

10. (1) In this Part—

“free of charge” means free of any costs necessarily incurred in remedying the lack of conformity of goods with the sales contract, including the cost of postage, carriage, labour or materials;

“guarantor” means a producer, trader or any other person who provides a commercial guarantee in relation to goods sold under a sales contract;

“relevant time” has the meaning assigned to it by section 15(4);

“Sale of Goods Directive” means Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019⁴ on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC.

• (2) A reference in this Part to goods being in conformity with a sales contract is to be construed in accordance with section 15(2).

• (3) A word or expression used in this Part that is also used in the Sale of Goods Directive has, unless the context otherwise requires, the same meaning in this Part as it has in the Sale of Goods Directive.

• (4) A court shall construe this Part in a manner that gives effect to the Sale of Goods Directive, and for this purpose the court shall have regard to the provisions of the Sale of Goods Directive, including its preamble.

11. Sales contracts

11. (1) Subject to subsections (2) to (7), “sales contract” means a contract under which—

• (a) a trader transfers, or undertakes to transfer, the ownership of goods to a consumer, and

• (b) the consumer—

• (i) pays, or undertakes to pay, the price of the goods, or

• (ii) transfers, or undertakes to transfer, ownership of goods to the trader in full or part payment of the price.

• (2) Any reference in the definition of “sales contract” in subsection (1) to the consumer paying a price includes a reference to the consumer using by way of payment any facility by which payment is made.

• (3) A sales contract may be concluded between one part-owner and another.

• (4) A sales contract includes a contract for the sale of goods to be produced or manufactured by the trader, including goods made to the consumer’s specifications.

• (5) A sales contract may be—

• (a) a transaction under which the ownership of goods is transferred from a trader to a consumer (referred to in this section as a “sale”), or

• (b) a transaction under which the ownership of goods is to be transferred from a trader to a consumer at a future time or subject to a condition that is to be fulfilled at a future time (referred to in this section as “an agreement to sell”).

• (6) An agreement to sell becomes a sale when the time elapses or the condition is met subject to which ownership of the goods is to be transferred.

• (7) A sales contract may be absolute or conditional.

• (8) For the purposes of subsection (7), a sales contract is conditional if the trader retains ownership of the goods to which the sales contract relates until the conditions specified in the contract (whether for the payment of instalments or otherwise) are met.

• (9) For the avoidance of doubt, a contract is not a conditional sales contract if it is a hire-purchase agreement.

• (10) In this section, “hire-purchase agreement” has the same meaning as it has in the Act of 1995.

12. Application (Part 2)

12. (1) Subject to subsections (4) to (6) and sections 29, 33 and 39, this Part applies to any contract specified in subsection (2) that is concluded between a trader and a consumer on or after the day on which this section comes into operation.

• (2) The contracts referred to in subsection (1) are—

• (a) a sales contract, including, in the case of a sales contract for the sale of goods with digital elements falling within subsection (3), the elements of the contract that relate to the supply of the digital content or digital service, and

• (b) where a single contract (not being a contract for the sale of goods with digital elements) between a trader and a consumer includes elements constituting the sale of goods in combination with elements constituting—

• (i) the supply of digital content,

• (ii) the supply of a digital service, or

• (iii) the supply of a service,

that contract so far as relating to the sale of goods.

• (3) A sales contract for the sale of goods with digital elements falls within this subsection where—

• (a) digital content or a digital service is supplied with goods under the contract (irrespective of whether the digital content or digital service is supplied by the trader or another person), and

• (b) the digital content or digital service is incorporated in or inter-connected with the goods in such a way that the absence of the digital content or digital service would prevent the goods from performing their functions.

• (4) Chapter 5 of this Part applies only if there is a commercial guarantee in relation to the goods sold under the sales contract.

• (5) This Part does not apply to a contract—

• (a) intended to operate as a mortgage, pledge, charge or other security, or

• (b) made by deed for which the sole consideration is the consideration imported by the deed.

• (6) This Part (other than Chapter 4), does not apply to a tangible medium that serves exclusively as a carrier for digital content.

• (7) A reference in any of Chapters 2 to 6 of this Part to a sales contract shall be construed as a reference to any contract to which this Part applies.

• (8) In the event of doubt as to whether the supply of incorporated or inter-connected digital content or an incorporated or inter-connected digital service forms part of a sales contract, the digital content or digital service shall be presumed to form part of the sales contract irrespective of whether the consumer is obliged to consent to a licensing agreement with a person other than the trader in order to access the digital content or digital service.

• (9) Nothing in this Part shall affect the entitlement of a consumer to terminate a contract under section 65(2) or 93(2).

13. Power of Minister to extend application of Part 2

13. (1) Subject to section 12 and subsection (2), the Minister may by regulations provide for the application of this Part to the following class of contract, namely a contract for the sale of goods with digital elements under which the consumer—

• (a) does not pay or undertake to pay the price of the goods, and

• (b) provides or undertakes to provide personal data to the trader, other than where the personal data are processed by the trader for the purpose only of supplying the goods with digital elements in accordance with this Part or complying with any other legal requirement to which the trader is subject.

• (2) The Minister may make regulations under subsection (1) only where the Minister is satisfied, after consultation with such persons as the Minister considers appropriate, that—

• (a) contracts of the class specified in subsection (1) are being concluded on a significant scale, and

• (b) the regulation of that class of contract would be in the interests of consumer protection and fair competition.

• (3) Regulations under subsection (1) may provide that the application of this Part to the class of contract specified in the regulations shall be subject to such modifications as may be specified in the regulations.

Chapter 2 Consumer rights in sales contracts

14. Right to terminate sales contract where trader has no right to sell

14. (1) Where a sales contract is concluded between a trader and a consumer, the trader shall ensure that, at the time when the ownership of the goods is to be transferred under the sales contract, the trader has the right to sell the goods.

• (2) Where the trader does not have the right to sell goods in accordance with subsection (1), the consumer shall have the right to terminate the sales contract.

• (3) Where the consumer has the right to terminate the sales contract under subsection (2) and wishes to exercise that right—

• (a) the consumer shall exercise that right in accordance with section 28, and

• (b) the trader shall comply with the obligations in section 30.

• (4) In case of dispute, it shall be for the trader to show that the trader has the right to sell the goods in accordance with subsection (1).

15. Goods to be in conformity with sales contract

15. (1) Where a sales contract is concluded between a trader and a consumer, the trader shall deliver goods to the consumer that are in conformity with the sales contract at the relevant time.

• (2) Goods are in conformity with the sales contract if the goods—

• (a) comply with the requirements of sections 16 to 18, and

• (b) do not fall to be treated as not being in conformity with the sales contract under section 19.

• (3) Where the goods delivered by the trader are not in conformity with the sales contract, the consumer shall have the right to the remedies specified in Chapter 3 of this Part.

• (4) In this section, “relevant time”—

• (a) in relation to goods other than goods with digital elements, means the time at which—

• (i) the consumer, or a person nominated by the consumer for the purpose, acquires the physical possession of the goods, or

• (ii) the goods are delivered to a carrier who was commissioned by the consumer to deliver the goods (and who was not proposed by the trader for that purpose),

and

• (b) in relation to goods with digital elements, means the time at which, following delivery of the physical component of the goods to the consumer or a person nominated by the consumer for the purpose—

• (i) the single act of supply of the digital content or digital service is performed, or

• (ii) the continuous supply of the digital content or digital service for a period specified in the sales contract, or the period for which the contract subsists, begins,

in such a way that the digital content or digital service, or any means suitable for downloading or accessing it, has reached the sphere of the consumer and no further action by the trader is required in order to enable the consumer to use the digital content or digital service in accordance with the sales contract.

16. Goods to be free from charge and other encumbrance

16. (1) The trader shall ensure that—

• (a) at the time when the ownership of goods is to be transferred under a sales contract, the goods are free from any charge or other encumbrance (other than a charge or other encumbrance which was disclosed to the consumer before the consumer entered into the sales contract), and

• (b) the consumer shall enjoy quiet possession of the goods except so far as it may be disturbed by any person entitled to the benefit of any charge or encumbrance so disclosed.

• (2) Where a sales contract shows, or the circumstances at the time the contract was concluded imply, that the trader and the consumer intend that the trader transfer only the limited title to the goods that the trader or a person other than the trader (a “third person”) may have—

• (a) all charges or encumbrances known to the trader shall be disclosed by the trader to the consumer before the consumer enters into the sales contract, and

• (b) the consumer’s quiet possession of the goods shall not be disturbed by—

• (i) the trader or the third person, or

• (ii) a person claiming through or under the trader or the third person unless that person is claiming under a charge or encumbrance that was disclosed to the consumer before the sales contract was concluded.

• (3) The consumer under a sales contract shall have the right to the remedies specified in Chapter 3 of this Part where—

• (a) the goods are not in compliance with subsection (1)(a) or (b),

• (b) the trader does not disclose all known charges or encumbrances in accordance with subsection (2)(a),

• (c) the consumer’s possession of the goods does not comply with subsection (2)(b), or

• (d) a restriction resulting from a violation of any right of a third person, in particular an intellectual property right, prevents or limits the use of the goods in accordance with section 17 or 18.

• (4) In case of dispute, it shall be for the trader to show that—

• (a) the goods complied with the requirements of subsection (1)(a) and (b),

• (b) the trader disclosed all known charges or encumbrances in accordance with subsection (2)(a), and

• (c) the consumer’s possession of the goods complied with subsection (2)(b).

17. Subjective requirements for conformity with sales contract

17. (1) The goods delivered under a sales contract shall—

• (a) be of the description, type, quantity and quality, and possess the functionality, compatibility, interoperability and other features, specified in the sales contract,

• (b) be fit for any particular purpose for which the consumer requires them—

• (i) that the consumer made known to the trader at the time of, or before, the conclusion of the sales contract, and

• (ii) that the trader has accepted,

• (c) be supplied with all accessories and instructions, including on installation of the goods, specified in the sales contract, and

• (d) be updated as specified in the sales contract.

• (2) The information that the trader is required to provide to the consumer in a distance contract or an off-premises contract under section 103, 104 or 106 shall form part of the sales contract.

• (3) Goods sold under a sales contract that is a distance contract or an off-premises contract shall comply with any term of the contract deriving from the information referred to in subsection (2) that is additional to the requirements of subsection (1).

• (4) Spare parts and an adequate after-sales service shall be made available by the trader—

• (a) in such circumstances as are stated in an offer, description or advertisement by the trader on behalf of the producer or on the trader’s own behalf, and

• (b) for such period as is so stated or, if no period is so stated, for a reasonable period.

18. Objective requirements for conformity with sales contract

18. (1) The goods delivered under a sales contract shall—

• (a) be fit for all of the purposes for which goods of the same type would normally be used, taking into account so far as relevant any enactment or rule of law, European Union law, technical standards or, in the absence of such technical standards, applicable sector-specific industry codes of conduct,

• (b) be of the quality and correspond to any description of a sample or model that the trader made available to the consumer before the conclusion of the sales contract,

• (c) be delivered along with any accessories, including packaging, installation instructions or other instructions, that the consumer may reasonably expect to receive, and

• (d) be of the quantity and possess the qualities and other features (including in relation to durability, functionality, compatibility and security) normal for goods of the same type that the consumer may reasonably expect given the nature of the goods and taking into account any public statement in relation to the goods made by, or on behalf of, the trader or any other person constituting a previous link in the chain of transactions relating to the sales contract, including the producer, particularly in advertising or on labelling.

• (2) In subsection (1)(d), the reference to the durability of the goods is a reference to the ability of the goods to maintain their functions and performance through normal use and to possess the ability to do so which is normal for goods of the same type and which the consumer can reasonably expect having regard to—

• (a) the specific nature of the goods,

• (b) the possible need for reasonable maintenance of the goods,

• (c) any public statement on the durability of the goods made by or on behalf of any person constituting a link in the chain of transactions, and

• (d) all other relevant circumstances, including the price of the goods and the intensity or frequency of the use made of the goods by the consumer.

• (3) The trader shall not be bound by any public statement referred to in subsection (1)(d) or (2)(c) if the trader shows that—

• (a) the trader was not, and could not reasonably have been, aware of the public statement in question,

• (b) at the time of the conclusion of the sales contract, the public statement had been corrected in the same way as it had been made (or in a comparable way), or

• (c) the decision of the consumer to buy the goods could not have been influenced by the public statement.

• (4) Where a sales contract for the sale of goods with digital elements provides for a single act of supply of the digital content or digital service, the trader shall ensure that the consumer is—

• (a) informed of the availability of, and

• (b) supplied with,

any update (including a security update) that is necessary for the goods to be in conformity with the sales contract for the period of time that the consumer may reasonably expect given the type and purpose of the goods and the digital elements, and taking into account the circumstances and nature of the sales contract.

• (5) Where a sales contract for the sale of goods with digital elements provides for a continuous supply of the digital content or digital service for a period exceeding two years, the trader shall ensure that the consumer is informed of the availability of, and supplied with, any update (including a security update) that is necessary for the goods to be in conformity with the sales contract during that period.

• (6) Where a sales contract for the sale of goods with digital elements provides for a continuous supply of the digital content or digital service for a period not exceeding two years, the trader shall ensure that the consumer is informed of the availability, and supplied with, any update (including a security update) that is necessary to maintain the goods in conformity with the contract for the period of two years beginning with the relevant time.

• (7) Where the consumer fails to install within a reasonable time an update supplied in accordance with subsection (4), (5) or (6), the trader shall not be liable for any lack of conformity with the sales contract resulting solely from the failure to install the update—

• (a) if the trader informed the consumer of the need for the consumer to install the update (including the consequences of failing to do so), and

• (b) the failure of the consumer to install the update, or the incorrect installation by the consumer of the update, was not due to shortcomings in the installation instructions provided to the consumer.

• (8) There shall be no lack of conformity with a sales contract under subsection (1), (4), (5) or (6) if at the time of the conclusion of the sales contract—

• (a) the consumer was specifically informed that a particular characteristic of the goods deviated from the requirements of the subsection concerned, including a lack of conformity with the sales contract caused by a restriction resulting from a violation of an intellectual property right or any other right of a third person, and

• (b) the consumer expressly and separately accepted that deviation.

• (9) In case of dispute, it shall be for the trader to show that the consumer—

• (a) was specifically informed that a particular characteristic of the goods deviated from the requirements of subsection (1), (4), (5) or (6), and

• (b) expressly and separately accepted that deviation when concluding the sales contract.

19. Incorrect installation of goods

19. Any lack of conformity with the sales contract resulting from the incorrect installation of the goods shall be regarded as a lack of conformity of the goods if—

• (a) the installation forms part of the sales contract and was carried out by the trader or under the trader’s responsibility, or

• (b) the installation, intended to be carried out by the consumer, was done by the consumer and the incorrect installation was due to shortcomings in the installation instructions provided to the consumer by the trader or, in the case of goods with digital elements, provided to the consumer by the trader or by the supplier of the digital content or digital service.

20. Implied terms of sales contract

20. Sections 14 and 16 to 19 shall be implied into every sales contract and shall have effect as if they were terms of such a contract.

21. Liability of trader under sales contract

21. (1) Subject to subsections (2) to (4), the trader shall be liable to the consumer for any lack of conformity of the goods with the sales contract which exists at the relevant time.

• (2) Where a sales contract provides for the delivery of goods on more than one occasion during the period for which the sales contract subsists, the trader shall be liable to the consumer for a lack of conformity of the goods with the sales contract which exists on any of those occasions.

• (3) Where a sales contract for the sale of goods with digital elements provides for a continuous supply of the digital content or digital service for a period specified in the sales contract, the trader shall be liable for a lack of conformity of the digital content or digital service with the sales contract that occurs or becomes apparent during that period.

• (4) Where an update is supplied by the trader or any other person supplying the digital content or digital service under a sales contract for the sale of goods with digital elements, the trader shall be liable for any lack of conformity with the sales contract—

• (a) caused by the update which exists at the time of supply or installation of the update, or

• (b) caused by the failure of the trader to supply an update in accordance with section 18 at the time when the update should have been supplied.

• (5) Subject to subsections (2) and (4), where a sales contract for the sale of goods other than goods with digital elements provides for a continuous supply of digital content or a digital service for a period specified in the sales contract, the consumer’s right to a remedy in respect of a lack of conformity with the sales contract for which the trader is liable under this section shall apply for the period of 6 years beginning with the relevant time.

• (6) Where a sales contract for the sale of goods with digital elements provides for a continuous supply of digital content or a digital service for a period specified in the sales contract, the consumer’s right to a remedy in respect of a lack of conformity with the sales contract for which the trader is liable under this section shall apply for the period of 6 years beginning with the time at which the lack of conformity with the sales contract occurs or becomes apparent during the period so specified in the sales contract.

22. Burden of proof under sales contract

22. (1) Subject to subsection (2), where it becomes apparent during the period of 12 months beginning with the relevant time that goods supplied under a sales contract are not in conformity with the sales contract, the lack of conformity shall be presumed to have existed at the relevant time unless—

• (a) the contrary is proven, or

• (b) such a presumption is incompatible with the nature of the goods or with the nature of the lack of conformity.

• (2) Where a sales contract for the sale of goods with digital elements provides for the continuous supply of the digital content or digital service for a period specified in the sales contract, the burden of proof as to whether the digital content or digital service was in conformity with the sales contract during that period shall be on the trader for a lack of conformity which becomes apparent during that period.

• (3) For the purposes of relying on the presumption under subsection (1), the consumer shall be required to prove only that—

• (a) the goods are not in conformity with the sales contract, and

• (b) the lack of conformity became apparent during the period of 12 months beginning with the relevant time.

• (4) Nothing in this section shall prevent or restrict a consumer from exercising a remedy after the expiry of the period of 12 months beginning with the relevant time.

Chapter 3 Consumer remedies in sales contracts

23. Right to remedies under sections 24 and 25

23. (1) Where goods are not in conformity with the sales contract at the relevant time, the consumer shall have the following rights—

• (a) the right to exercise the short-term right to terminate the sales contract in accordance with section 24, and

• (b) subject to subsections (2) and (3), the right to have the goods brought into conformity with the contract through repair or replacement in accordance with section 25.

• (2) The consumer may choose between the remedies of repair and replacement of the goods unless the remedy chosen by the consumer—

• (a) would be impossible for the trader to carry out, or

• (b) compared to the alternative remedy, would impose disproportionate costs on the trader, taking all the circumstances into account, including—

• (i) the value that the goods would have if there were no lack of conformity,

• (ii) the significance of the lack of conformity, and

• (iii) whether the alternative remedy could be provided without significant inconvenience to the consumer.

• (3) The trader may refuse to bring the goods into conformity with the sales contract if both repair and replacement—

• (a) are impossible for the trader to carry out, or

• (b) compared to the alternative remedy, would impose disproportionate costs on the trader, taking all the circumstances into account, including those specified in subsection (2)(b)(i) and (ii).

24. Short-term right to terminate sales contract

24. (1) This section applies where the consumer has the short-term right to terminate the sales contract under section 23(1).

• (2) Subject to subsection (4), the time limit for exercising the short-term right to terminate the sales contract expires at the end of the period of 30 days beginning with—

• (a) where the contract requires the trader to install the goods after their delivery or to take any other action to enable the consumer to use the goods, the completion of that installation or other action, or

• (b) in any other case, the relevant time.

• (3) Subsection (2) does not prevent a consumer who has a right to terminate the sales contract from terminating it before the completion of the installation or other action or, as the case may be, the relevant time.

• (4) Where the goods are of a kind that can reasonably be expected to expire or deteriorate within a shorter period than 30 days, the time limit for exercising the short-term right to terminate the sales contract shall be the expiry of that shorter period.

• (5) In case of dispute, it shall be for the trader to show that a shorter period than 30 days applies to the consumer’s right to terminate the sales contract under subsection (4).

• (6) Where the consumer has the right to terminate the sales contract under this section and wishes to exercise that right—

• (a) the consumer shall exercise that right in accordance with section 28, and

• (b) the trader shall comply with the obligations in section 30.

25. Repair or replacement of goods

25. (1) This section applies where goods are to be brought into conformity with the sales contract by repair or replacement.

• (2) The trader shall ensure that the repair or replacement of the goods is carried out—

• (a) free of charge,

• (b) within a reasonable time after being informed by the consumer of the lack of conformity with the sales contract, and

• (c) without significant inconvenience to the consumer, taking into account the nature of the goods and the purpose for which the consumer required the goods.

• (3) Subject to any provision made by regulations under subsection (8), the reasonable time for completing the repair or replacement of the goods under subsection (2)(b) shall correspond to the shortest possible time necessary for completing the repair or replacement and shall be objectively determined having regard to—

• (a) the nature and complexity of the goods,

• (b) the nature and severity of the lack of conformity with the sales contract, and

• (c) the effort needed to complete the repair or replacement.

• (4) The consumer shall make the goods to be remedied by repair or replacement available to the trader.

• (5) The trader shall take back the replaced goods and the goods to be repaired at the trader’s expense.

• (6) Where a repair requires the removal of goods that had been installed in a manner consistent with their nature and purpose before the lack of conformity with the sales contract became apparent, or where such goods are to be replaced, the trader’s obligation to repair or replace the goods shall include—

• (a) the removal of the goods that are not in conformity with the sales contract and the installation of replacement goods or repaired goods, or

• (b) bearing the costs of that removal and installation.

• (7) The consumer shall not be liable to pay for the normal use of the replaced goods during the period prior to their replacement.

• (8) The Minister may—

• (a) where he or she is satisfied that such regulations would be in the interests of consumer protection and fair competition, and

• (b) after consultation with such persons as the Minister considers appropriate,

by regulations specify the period in relation to a specific category of goods that is to be generally regarded as “reasonable” for the repair or replacement of that category of goods for the purposes of subsections (2)(b) and (3).

26. Right to proportionate reduction in price or final termination of sales contract

26. (1) This section applies where—

• (a) the consumer has exercised his or her right under section 23(1)(b) and—

• (i) the trader has refused to bring the goods into conformity with the sales contract in accordance with section 23(3), or

• (ii) the trader has not completed the repair or the replacement of the goods or, where applicable, has not completed the repair or replacement in accordance with section 25,

• (b) the same or a different lack of conformity of the goods with the sales contract becomes apparent despite the trader having attempted to bring the goods into conformity with the sales contract,

• (c) the lack of conformity of the goods with the sales contract is of such a serious nature as to justify an immediate reduction in the price or the termination of the sales contract, or

• (d) the trader has declared, or it is clear from the circumstances, that the trader will not bring the goods into conformity with the sales contract within a reasonable time or without significant inconvenience to the consumer.

• (2) Subject to subsections (5) and (7), the consumer shall have—

• (a) the right to a proportionate reduction in the price in accordance with section 27, or

• (b) subject to subsection (3), the right to exercise the final right to terminate the sales contract in accordance with section 28.

• (3) The consumer shall not have the right to exercise the final right to terminate the sales contract under subsection (2)(b) if the lack of conformity of the goods with the sales contract is minor.

• (4) In case of dispute, it shall be for the trader to show that the lack of conformity of the goods is minor.

• (5) Where subsection (1)(b) applies, it shall be objectively determined, taking all the circumstances into account (including the matters mentioned in subsection (6)), whether the consumer—

• (a) shall have the right specified in paragraph (a) or (b) of subsection (2), or

• (b) shall be required to accept a further attempt or attempts by the trader to bring the goods into conformity with the sales contract.

• (6) The matters referred to in subsection (5) are—

• (a) the type and value of the goods,

• (b) the nature and significance of the lack of conformity of the goods with the sales contract, and

• (c) whether the consumer can reasonably be expected to maintain confidence in the ability of the trader to bring the goods into conformity with the sales contract, in particular where the same lack of conformity appears more than once.

• (7) For the purposes of subsection (1)(c), it shall be objectively determined, having regard to the nature and severity of the lack of conformity of the goods with the sales contract (including the matters mentioned in subsection (8)), whether that lack of conformity is of such a serious nature as to justify the application of subsection (2).

• (8) The matters referred to in subsection (7) are whether the lack of conformity with the sales contract is such that—

• (a) the consumer cannot maintain confidence in the ability of the trader to bring the goods into conformity with the sales contract,

• (b) the ability of the consumer to make normal use of the goods is severely affected and the consumer cannot reasonably be expected to trust that this would be remedied by repair or replacement by the trader.

• (9) Where the consumer is entitled to exercise the right conferred by subsection (2)(b) by virtue of some (but not all) of the goods to which the sales contract relates not being in conformity with the sales contract, the consumer may exercise that right only in relation to—

• (a) the goods that are not in conformity with the sales contract, and

• (b) any other goods that the consumer acquired with the goods that are not in conformity with the sales contract, if the consumer cannot reasonably be expected to keep only the goods that are in conformity with the sales contract.

27. Price reduction: sales contract

27. (1) This section applies where the consumer has the right under section 26(2)(a) to a proportionate reduction in the price.

• (2) The right of the consumer under this section is the right—

• (a) to require the trader to reduce in accordance with subsection (3) the price the consumer is required to pay under the sales contract, or

• (b) to receive from the trader a reimbursement of the price paid by the consumer in excess of the amount of the reduction applicable under subsection (3).

• (3) The reduction in the price shall be proportionate to the decrease in the value of the goods received by the consumer compared with the value that the goods would have if they were in conformity with the sales contract.

• (4) Where the consumer has the right to reimbursement under subsection (2)(b), the trader shall reimburse the consumer in accordance with section 31.

• (5) In a sales contract where the consumer transfers the ownership of goods to the trader in full or part payment of the price, the right of the consumer to a proportionate reduction in the price shall not apply if—

• (a) no agreed monetary value was ascribed by the parties to the goods to be transferred by the consumer at the time the sales contract was concluded, or

• (b) the goods which the consumer has transferred, or is required to transfer, under the sales contract cannot be divided up so as to enable the trader to receive or retain only the reduced price.

28. Obligations of consumer in event of termination of sales contract

28. (1) This section applies where the consumer exercises any of the following rights—

• (a) the right to terminate a sales contract under section 14(2) or 36(5),

• (b) the short-term right to terminate a sales contract under section 23(1) or 37(2), or

• (c) the final right to terminate a sales contract under section 26(2)(b) or 37(2)(b).

• (2) The consumer shall—

• (a) terminate the sales contract by means of a statement to the trader expressing the decision to terminate the sales contract, and

• (b) return the goods delivered under the sales contract to the trader at the trader’s expense.

• (3) If a consumer fails to comply with an obligation imposed by subsection (2), he or she shall be liable in damages for any loss or damage suffered by the trader as a result of the failure.

29. Remedies where contract also provides for supply of digital content etc.

29. (1) This section applies where goods are sold to a consumer under a contract that provides also for the supply of digital content, a digital service or a service.

• (2) Where the conditions in subsection (3) are met, the consumer shall have the right—

• (a) to terminate the contract, or

• (b) to obtain a proportionate reduction in the price payable under the contract.

• (3) The conditions referred to in subsection (2) are the following:

• (a) if the contract were a contract for the sale of goods only, the consumer would have the right under section 26 to obtain a proportionate reduction in the price or to terminate the contract;

• (b) the value of the digital content, digital service or service to the consumer would be materially reduced in the absence of the goods.

• (4) In objectively determining whether the value of the digital content, digital service or service to the consumer would be materially reduced in the absence of the goods for the purposes of subsection (3)(b), all the circumstances shall be taken into account, including—

• (a) the nature and purpose of the contract,

• (b) the relative value of the different elements of the contract, and

• (c) the nature and degree of the inter-dependence of the different elements of the contract.

• (5) Where the consumer exercises the right to terminate the contract under subsection (2)—

• (a) the consumer shall comply with the obligations in section 28(2), and

• (b) the trader with whom the consumer has that contract shall comply with the obligations in section 30.

• (6) Subsection (3) shall not apply to a contract for terminal equipment and a bundle of services which falls within the scope of Article 107 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018⁵ establishing the European Electronic Communications Code (Recast).

30. Obligations of trader where sales contract terminated

30. (1) This section applies where the consumer exercises—

• (a) the right to terminate a sales contract under section 14(2) or 36(5),

• (b) the short-term right to terminate a sales contract under section 23(1) or 37(2)(a), or

• (c) the final right to terminate a sales contract under section 26(2)(b) or 37(2)(b).

• (2) The trader shall upon receipt of the goods or, if the trader so chooses, of evidence provided by the consumer of having returned the goods, reimburse the consumer in accordance with section 31 for—

• (a) the price paid for the goods, and

• (b) any costs incurred by the consumer in returning the goods to the trader.

• (3) Where the consumer exercises the final right to terminate the sales contract under section 26(2)(b) or 37(2)(b), the reimbursement of the price to which the consumer is entitled under subsection (2) may be reduced in proportion to any depreciation in the value of the goods in excess of the depreciation that could reasonably be expected to result from their normal use.

• (4) In case of dispute as to the application of subsection (3), it shall be for the trader to show that the depreciation in the value of the goods exceeded that which could reasonably be expected to result from their normal use.

• (5) Where the consumer terminates a conditional sales contract within the meaning of section 11 before the price of the goods has been paid in full, the reimbursement of the price to which the consumer is entitled under subsection (2) shall be limited to that part of the price for the goods which has been paid by the consumer.

• (6) Subject to subsection (7), in a sales contract where the consumer transfers the ownership of goods to the trader in full or part payment of the price, the trader shall—

• (a) return those goods to the consumer, and

• (b) reimburse in accordance with section 31 any price paid by the consumer.

• (7) If the trader cannot return the goods to the consumer as required by subsection (6), the trader shall reimburse the consumer—

• (a) to the agreed monetary value ascribed to the goods by the parties at the time the sales contract was concluded, or

• (b) where no such monetary value was agreed, with a sum that is a reasonable and objectively justified exchange value of the goods at the time the sales contract was concluded.

31. Time limits and means of reimbursement by trader: sales contract

31. (1) This section applies where the consumer has the right under section 27(4), 30(2) or (7) or 37(4) to be reimbursed by the trader.

• (2) The trader shall reimburse the consumer—

• (a) without undue delay and in any event not later than 14 days after the date on which the trader received—

• (i) the goods back, or

• (ii) if the trader so chooses, evidence provided by the consumer of having returned the goods,

• (b) using the same means of payment as the consumer used to pay for the goods, unless the consumer expressly agrees otherwise and provided that the consumer does not incur any fees as a result of such reimbursement, and

• (c) without the imposition of any fee on the consumer in respect of the reimbursement.

• (3) If a trader fails to comply with an obligation imposed by subsection (2), the trader shall be liable in damages for any loss or damage suffered by the consumer as a result of the failure.

32. General right to withhold payment: sales contract

32. (1) Subject to subsection (2), where the trader fails to comply with the obligation to deliver goods that are in conformity with the sales contract at the relevant time, the consumer shall have the right to withhold payment of any outstanding part of the price until the trader has fulfilled the trader’s obligation to deliver goods that are in conformity with the sales contract.

• (2) The part of the price withheld by the consumer under subsection (1) shall be proportionate to the decrease in the value of the goods received by the consumer compared with the value that the goods would have if they were in conformity with the contract.

• (3) The consumer shall exercise the right to withhold payment under subsection (1) by means of a statement to the trader expressing the consumer’s decision to withhold payment until the trader has fulfilled the trader’s obligation to deliver goods that are in conformity with the sales contract.

33. Effect of termination of sales contract on ancillary contract

33. (1) Where a consumer terminates a sales contract in accordance with section 28, any ancillary contract shall be automatically terminated without any cost to the consumer.

• (2) When a trader is informed by a consumer in accordance with section 28 of the consumer’s decision to terminate a sales contract, the trader shall inform any other trader with whom the consumer has an ancillary contract of its termination by subsection (1).

• (3) Where an ancillary contract is terminated by subsection (1)—

• (a) the trader with whom the consumer has that contract shall comply with the obligations in section 30, and

• (b) the consumer shall comply with the obligation in section 28(1)(b).

• (4) Where any security has been provided under an ancillary contract that is terminated by subsection (1), it is to be treated as never having had effect and any property lodged with the trader or any other person (a “third party”) solely for the purposes of that security shall be returned immediately by the trader or third party.

• (5) In this section, “ancillary contract”, in relation to a sales contract concluded between a consumer and a trader (in this subsection referred to as the “principal contract”), means another contract concluded between that consumer and that trader, or that consumer and a third party, under which—

• (a) the trader, or

• (b) in pursuance of arrangements made between the trader and a third party, the third party,

supplies to the consumer goods, digital content, a digital service or a service related to the principal contract.

34. Consumer’s right to pursue other remedies

34. (1) The remedies provided for in this Chapter and Chapter 4 of this Part do not affect the right of the consumer to pursue other remedies (without recovering twice for the same loss) where goods are not in conformity with the sales contract or the trader otherwise fails to comply with the requirements of this Part.

• (2) The other remedies referred to in subsection (1) include in particular any of the following remedies that may be available to the consumer—

• (a) claiming damages,

• (b) relying on the lack of conformity with the sales contract against a claim under the sales contract by the trader for payment of the price,

• (c) seeking to recover money paid to the trader for goods that do not comply with the requirements of this Part,

• (d) having a lack of conformity of the goods with the sales contract remedied elsewhere and recovering from the trader all reasonable costs incurred in having the lack of conformity so remedied, or

• (e) an order for specific performance under section 52 of the Sale of Goods Act, 1893 in an action for breach of contract to deliver specific or ascertained goods.

Chapter 4 Other rules in sales contracts

35. Passing of risk

35. (1) Where a sales contract is concluded between a trader and a consumer, goods remain at the trader’s risk until the consumer, or a person nominated by the consumer for the purpose, acquires the physical possession of the goods.

• (2) Subsection (1) does not apply where the goods are delivered to a carrier who—

• (a) was commissioned by the consumer for the purpose of carrying the goods, and

• (b) was not proposed by the trader for that purpose.

• (3) Where subsection (2) applies, the goods are at the consumer’s risk upon delivery to the carrier.

• (4) Subsection (3) is without prejudice to the rights of the consumer against the carrier.

36. Delivery of goods under sales contract

36. (1) Where a sales contract is concluded between a trader and a consumer, the trader shall deliver the goods to the consumer in accordance with the contract.

• (2) Unless the trader and the consumer have agreed otherwise, the trader shall deliver the goods by transferring the physical possession or control of the goods to the consumer without undue delay and in any event not later than 30 days after the conclusion of the sales contract.

• (3) If the trader does not deliver the goods—

• (a) at the time, or within the period, agreed with the consumer, or

• (b) where no such time or period has been agreed between the trader and the consumer, in accordance with subsection (2),

the consumer shall call upon the trader to make the delivery within an additional period that is appropriate in the circumstances.

• (4) Subsection (3) does not apply where—

• (a) the trader has refused to deliver the goods,

• (b) delivery of the goods within the period agreed with the consumer is essential, taking into account all the relevant circumstances at the time of the conclusion of the sales contract, or

• (c) the consumer informed the trader at the time of, or before, the conclusion of the sales contract that delivery on or by a specified date was essential.

• (5) Where the trader—

• (a) has refused to deliver the goods,

• (b) fails to deliver the goods within any additional period for delivery applicable under subsection (3), or

• (c) fails to deliver the goods—

• (i) within the period agreed with the consumer under subsection (4)(b), or

• (ii) on or by the date specified by the consumer under subsection (4)(c),

the consumer shall have the right to terminate the sales contract.

• (6) Where the consumer has the right to terminate a sales contract under subsection (5) and wishes to exercise that right—

• (a) the consumer shall exercise that right in accordance with section 28, and

• (b) the trader shall comply with the obligations in section 30.

37. Instalment deliveries

37. (1) Unless otherwise agreed between the consumer and the trader, the consumer is not bound to accept delivery of the goods under a sales contract by instalments.