Consumer Rights Act 2022

where the trader provides the consumer with the information on the right to cancel required by clause (m) of Schedule 3 within 12 months of the day on which the cancellation period would, but for this subsection, have expired in accordance with section 113, that cancellation period shall instead expire on the expiry of the period of 30 days beginning on the day on which the consumer receives that information.

• (4) The information on the right to cancel referred to in subsections (1) to (3) shall be provided in accordance with:

• (a) section 103, in the case of off-premises contracts;

• (b) section 104, in the case of off-premises contracts for repairs or maintenance to which that section applies;

• (c) section 106, in the case of distance contracts.

115. Exercise of right to cancel

115. (1) Where the consumer wishes to exercise the right to cancel a distance contract or an off-premises contract under section 112, the consumer shall, before the expiry of the cancellation period, inform the trader of his or her decision to cancel the contract.

• (2) For the purposes of informing the trader under subsection (1), the consumer may—

• (a) use the model cancellation form set out in Part 2 of Schedule 4, or

• (b) make any other unequivocal statement setting out his or her decision to cancel the contract.

• (3) Where the trader gives the consumer the option to do so, the consumer may fill in and submit the cancellation form or the statement referred to in subsection (2) on the trader’s website.

• (4) Where the consumer exercises the option in subsection (3), the trader shall communicate to the consumer without delay an acknowledgement on a durable medium of receipt of the consumer’s cancellation of the contract.

• (5) The consumer exercises the right to cancel within the cancellation period if he or she sends the communication concerning the exercise of the right to the trader before that period has expired.

• (6) In case of dispute, it is for the consumer to show that the right to cancel was exercised in accordance with this section.

116. Effect of cancellation or withdrawal

116. (1) Subject to sections 117 to 121, the exercise by the consumer of the right to cancel a distance contract or an off-premises contract under section 112 terminates the obligations of the consumer and the trader to perform the contract.

• (2) The withdrawal by the consumer of an offer to enter into a distance contract or an off‑premises contract terminates any obligation on the consumer or the trader to conclude the contract.

117. Obligations of trader in event of cancellation

117. (1) Subject to subsection (2), the trader shall reimburse all payments, including any payment for delivery, received from a consumer who exercises the right to cancel a contract.

• (2) If the consumer has expressly opted for a type of delivery costing more than the least expensive type of standard delivery offered by the trader, the trader is required to reimburse the consumer in respect of the payment for delivery only by an amount equivalent to the cost of the least expensive type of standard delivery offered by the trader.

• (3) Subject to subsection (4), the trader shall reimburse the consumer’s payment without undue delay and in any event not later than 14 days after the day on which the trader is informed in accordance with section 115 of the consumer’s decision to cancel the contract.

• (4) Where the cancellation relates to a sales contract, the trader may, unless the trader has offered to collect the goods, withhold the reimbursement until—

• (a) the trader has received the goods back, or

• (b) the consumer supplies evidence to the trader that he or she has sent the goods back,

whichever first occurs.

• (5) Unless the consumer has expressly agreed otherwise, the trader shall reimburse the consumer using the same means of payment as the consumer used for the initial transaction.

• (6) Where the consumer agrees that the reimbursement may be made by a different means of payment to that used for the initial transaction, the trader shall ensure that the consumer does not incur any fees as a result of the use of that different means of payment.

• (7) The trader shall not use any content, other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader, except where such content—

• (a) has no utility outside the context of the digital content or digital service supplied by the trader,

• (b) only relates to the consumer’s activity when using the digital content or digital service supplied by the trader,

• (c) has been aggregated with other data by the trader and cannot be disaggregated or can be disaggregated only with disproportionate effort, or

• (d) has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.

• (8) The trader shall, at the request of the consumer, make available to the consumer any content (other than personal data or content to which subsection (7)(a), (b) or (c) applies) which was provided or created by the consumer when using the digital content or digital service supplied by the trader.

• (9) The consumer shall be entitled to retrieve the digital content referred to in subsection (8) free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format.

• (10) Where the consumer cancels the contract, the trader may prevent any further use of the digital content or digital service by the consumer, in particular by making the digital content or digital service inaccessible to the consumer or disabling the user account of the consumer, without prejudice to subsection (8).

• (11) A trader who contravenes any of subsections (1) to (8) commits an offence.

• (12) If the trader fails to comply with an obligation to reimburse the consumer in accordance with this section, the trader shall be liable in damages for any loss or damage suffered by the consumer as a result of that failure.

118. Return of goods and obligations of consumer in event of cancellation

118. (1) Where a consumer cancels a sales contract under section 112, the trader shall collect the goods if—

• (a) the trader has offered to collect them, or

• (b) in the case of an off-premises contract, the goods were delivered to the consumer’s home at the time of the conclusion of the contract and the nature of the goods is such that they cannot normally be returned by post.

• (2) Where the trader is required to collect the goods under subsection (1), the trader shall do so at the trader’s own expense.

• (3) Where the trader is not required to collect the goods under subsection (1), the consumer shall—

• (a) send them back, or

• (b) hand them over to the trader or to a person authorised by the trader to receive them.

• (4) The consumer shall return or hand over the goods without undue delay and in any event not later than 14 days after the day on which he or she informed the trader in accordance with section 115 of his or her decision to cancel the contract.

• (5) The consumer shall bear the direct costs of returning the goods under subsection (3) unless—

• (a) the trader has agreed to bear those costs, or

• (b) the trader has failed to inform the consumer, in accordance with clause (n) of Schedule 3, that the consumer shall bear those costs.

• (6) A consumer who is required to return goods to a trader following the exercise of the right to cancel—

• (a) shall take reasonable care of the goods prior to returning them, and

• (b) is liable for any diminished value of the goods resulting from the handling of the goods beyond that necessary to establish their nature, characteristics and functioning.

• (7) There is no liability on the consumer under subsection (6) if the trader has failed to provide the consumer with the information on the right to cancel required by clause (m) of Schedule 3 in accordance with—

• (a) section 103, in the case of off-premises contracts,

• (b) section 104, in the case of off-premises contacts for repairs or maintenance to which that section applies, or

• (c) section 106, in the case of distance contracts.

• (8) If the consumer fails to comply with the obligation to return the goods in accordance with this section, he or she shall be liable in damages for any loss or damage suffered by the trader as a result of that failure.

• (9) Where a consumer cancels a contract for the supply of—

• (a) digital content that is not supplied on a tangible medium, or

• (b) a digital service,

he or she shall not use the digital content or digital service or make it available to any third person.

119. Performance of certain contracts during cancellation period

119. (1) This section applies to any of the following contracts concluded between a trader and a consumer that place the consumer under an obligation to pay:

• (a) a service contract;

• (b) a digital service contract;

• (c) a contract for the supply of water, gas or electricity that is not supplied in a limited volume or set quantity;

• (d) a contract for the supply of district heating.

• (2) Where the consumer wishes the performance of the contract to begin during the cancellation period, the trader shall—

• (a) require the consumer to make an express request to this effect on a durable medium, and

• (b) request the consumer to acknowledge that, once the contract has been fully performed by the trader, the consumer will no longer have the right to cancel the contract under section 112.

• (3) Subject to subsection (5), where the consumer cancels a contract during the cancellation period before the service, digital service, water, gas, electricity or district heating has been fully supplied, the consumer shall pay to the trader an amount for the supply of such service, digital service, water, gas, electricity or district heating—

• (a) for the period for which it is supplied, ending on the date the consumer informed the trader of the consumer’s decision to cancel the contract, and

• (b) that is in proportion to what has been supplied.

• (4) The amount referred to in subsection (3) is to be calculated—

• (a) on the basis of the total price agreed in the contract, or

• (b) if that total price is excessive, on the basis of the market value of the service that has been supplied.

• (5) The consumer bears no cost for the supply of the service, digital service, water, gas, electricity or district heating during the cancellation period if—

• (a) the trader has failed to provide the consumer with the information on—

• (i) the right to cancel required by clause (m) of Schedule 3, or

• (ii) the consumer’s liability to pay the trader reasonable costs for the performance of the contract during the cancellation period required by clause (o) of Schedule 3,

or

• (b) the consumer has not expressly requested performance to begin during the cancellation period in accordance with subsection (2).

• (6) The information on the right to cancel and on the consumer’s liability to pay the trader reasonable costs referred to in subsection (5)(a) shall be provided in accordance with—

• (a) section 103, in the case of off-premises contracts,

• (b) section 104, in the case of off-premises contracts for repairs or maintenance to which that section applies, or

• (c) section 106, in the case of distance contracts.

120. Supply of digital content during cancellation period

120. (1) This section applies where a consumer cancels a contract for the supply of digital content that is not supplied on a tangible medium under section 112.

• (2) The consumer is not liable for the cost of that supply, whether in full or in part, during the cancellation period if—

• (a) the consumer has not given his or her prior express consent to the beginning of the performance of the digital content before the expiry of the cancellation period,

• (b) the consumer has not acknowledged, in giving his or her consent to the beginning of the performance of the digital content before the expiry of the cancellation period, that the right to cancel would be lost, or

• (c) the trader has failed to provide confirmation in accordance with subsection (3) of—

• (i) the consumer’s prior express consent to the beginning of the performance of the digital content before the expiry of the cancellation period, and

• (ii) the consumer’s acknowledgement of the loss of the right to cancel the contract where the performance of the digital content has begun with the consumer’s prior express consent before the expiry of the cancellation period.

• (3) Confirmation is provided in accordance with this subsection—

• (a) where it relates to an off-premises contract, if it is provided in accordance with section 105, and

• (b) where it relates to a distance contract, if it is provided in accordance with section 109.

121. Effect of cancellation on ancillary contract

121. (1) Where a consumer cancels a distance contract or an off-premises contract in accordance with this Chapter, any ancillary contract is automatically terminated without any cost for the consumers other than costs under the following provisions:

• (a) section 117(2) (non-standard delivery);

• (b) section 118(5) (direct cost of returning goods);

• (c) section 118(6)(b) (diminished value of goods);

• (d) section 119(3) (services, gas, water, electricity, or district heating supplied during cancellation period).

• (2) When a trader is informed by a consumer in accordance with section 115 of the consumer’s decision to cancel a 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 reimburse all payments received from the consumer, and

• (b) the consumer—

• (i) shall return any goods delivered under the ancillary contract to the trader at the trader’s expense, and

• (ii) shall not use any digital content or digital service supplied under the ancillary contract or make it available to any third person.

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

• (5) Subsection (1) is without prejudice to Regulation 18 of the European Communities (Consumer Credit Agreements) Regulations 2010 (S.I. No. 281 of 2010).

• (6) Notwithstanding section 97(3)(a), contracts for financial services may be ancillary contracts for the purposes of this section.

• (7) In this section, “ancillary contract” means a contract under which—

• (a) the consumer acquires—

• (i) goods,

• (ii) a service,

• (iii) digital content,

• (iv) a digital service, or

• (v) water, gas or electricity that is not supplied in a limited volume or set quantity,

related to a distance contract or an off-premises contract, and

• (b) the goods are, or the service, digital content, digital service, water, gas or electricity is, supplied by—

• (i) the trader, or

• (ii) a person other than the trader on the basis of an arrangement between the trader and that other person.

Chapter 6 Other consumer rights

122. Fee for use of means of payment

122. (1) A trader shall not charge a consumer, in respect of the use of a given means of payment, a fee that exceeds the cost borne by the trader for the use of that means of payment.

• (2) Where—

• (a) a trader charges a consumer a fee that exceeds the cost borne by the trader as mentioned in subsection (1), and

• (b) the consumer pays that fee,

the trader shall reimburse the consumer to the extent of the excess paid.

• (3) Any provision of a contract which requires the consumer to pay a fee that exceeds the cost borne by the trader as mentioned in subsection (1) is unenforceable to the extent of the excess charged.

• (4) A trader who contravenes subsection (1) commits an offence.

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

• (6) In case of dispute, it is for the trader to show that a fee charged in respect of the use of a given means of payment does not exceed the cost borne by the trader for the use of that means of payment.

• (7) Nothing in this section shall affect the operation of Regulation 86 of the European Union (Payment Services) Regulations 2018 (S.I. No. 6 of 2018).

123. Additional payments

123. (1) Before a consumer is bound by a contract or an offer, the trader shall seek the consumer’s express consent to any payment additional to the payment or other consideration agreed for the trader’s main obligation under the contract.

• (2) There is no express consent by the consumer under subsection (1) if that consent is inferred from the use of a default option which the consumer is required to reject in order to avoid the additional payment.

• (3) Where a trader receives a payment from a consumer that contravenes subsection (1), the trader shall reimburse the consumer for the payment.

• (4) Any provision of a contract which requires the consumer to make a payment that contravenes subsection (1) is unenforceable.

• (5) A trader who contravenes subsection (1) or (3) commits an offence.

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

• (7) In case of dispute, it is for the trader to show that—

• (a) the trader sought the consumer’s express consent to any payment additional to that agreed for the trader’s main obligation under the contract, and

• (b) consent was not inferred from the use of a default option which the consumer was required to reject in order to avoid the additional payment.

124. Charges for communication by telephone

124. (1) Where a trader operates a telephone line for the purpose of enabling a consumer to contact the trader in relation to a contract concluded by the consumer with the trader, the trader shall ensure that the telephone line is available to the consumer at a charge that does not exceed the basic rate.

• (2) Where a trader operates a telephone line that contravenes subsection (1), and the consumer uses the line and pays more than the basic rate, the trader shall reimburse the consumer to the extent of the excess charged.

• (3) Any provision of a contract which requires the consumer to make a payment that contravenes subsection (1) is unenforceable.

• (4) A trader who contravenes subsection (1) commits an offence.

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

• (6) In case of dispute, it is for the trader to show that calls to a telephone line operated by the trader for the purpose of permitting consumers to contact the trader in relation to a contract concluded with the trader were not charged at more than the basic rate.

• (7) In this section—

“basic rate”, in relation to a telephone line operated by a trader for the purpose referred to in subsection (1), means:

• (a) where the telephone line uses a freephone number, nil;

• (b) where the telephone line uses a landline telephone number, the rate charged for a call to a landline telephone number;

• (c) where the telephone line uses a mobile telephone number, the rate charged for a call to a mobile telephone number;

• (d) where the telephone line uses a standard rate number, the rate charged for a call to a standard rate number;

• (e) where the telephone line does not fall within any of paragraphs (a) to (d), the rate charged for a call to a landline telephone number;

“freephone number” means a non-geographic number (other than a mobile telephone number, a standard rate number or a premium rate number), in respect of which the charge for a call is paid for by the called party and not the caller;

“landline telephone number” means a number from the national numbering scheme where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point;

“mobile telephone number” means a mobile telephone number that is a non-geographic number (other than a freephone number, a standard rate number or a premium rate number);

“national numbering scheme” has the same meaning as it has in section 12 of the Communications Regulation Act 2002;

“network termination point” has the meaning assigned to it by Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018¹⁶ establishing the European Electronic Communications Code (Recast);

“non-geographic number” means a number—

• (a) that is not a landline telephone number, and

• (b) that is from the national numbering scheme;

“premium rate number” means a non-geographic number that is used to provide a premium rate service within the meaning of the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010;

“standard rate number” means a non-geographic number (other than a freephone number, a mobile telephone number or a premium rate number), in respect of which the rate charged to the caller does not exceed the rate charged for a call to a landline telephone number.

125. Inertia selling

125. (1) Where—

• (a) goods are supplied by a trader to a consumer without any request by or on behalf of the consumer, or

• (b) a service, digital service, digital content, or (where not supplied in a limited volume or set quantity) water, gas or electricity, is supplied by a trader to a consumer without any request by or on behalf of the consumer,

the consumer is exempted from any requirement to pay or provide any consideration to the trader and may treat the goods, service, digital service, digital content, water, gas or electricity as an unconditional gift.

• (2) The absence of a response from the consumer following the supply as mentioned in subsection (1) of goods, a service, digital service, digital content, water, gas or electricity does not constitute consent to—

• (a) the provision of consideration for the goods, service, digital service, digital content, water, gas or electricity, or

• (b) the return or safekeeping of any goods so supplied.

PART 6 Unfair terms in consumer contracts

Chapter 1 Interpretation and application (Part 6)

126. Interpretation (Part 6)

126. (1) In this Part—

“authorised body” means—

• (a) the Competition and Consumer Protection Commission,

• (b) the Central Bank of Ireland,

• (c) the Commission for Communications Regulation,

• (d) the Consumers’ Association of Ireland, being the association of that name whose purpose is to promote and protect the interests of consumers, or

• (e) such other person as may be prescribed;

“consumer contract” means any contract between a consumer and a trader.

• (2) Any reference in this Part to a term of a consumer contract includes a reference to a term, condition or specification (howsoever described) which governs, or purports to govern, the contractual relationship between the trader and consumer.

127. Application (Part 6)

127. (1) Subject to subsections (2) to (6) and section 140(2)(b), this Part applies to a consumer contract that is concluded on or after the day on which this section comes into operation.

• (2) A consumer contract is not excluded from the application of this Part by reason only that—

• (a) the consumer contract or a term of the consumer contract has been individually negotiated between the trader and the consumer, or

• (b) the consumer does not pay a price under the contract.

• (3) This Part does not apply to a term of a consumer contract that reflects—

• (a) mandatory statutory or regulatory provisions, including rules that, according to law, apply between the contracting parties on the basis that no other rules or arrangements have been established, or

• (b) the provisions or principles of international conventions to which the State or the European Union is party.

• (4) This Part does not apply to—

• (a) a contract of employment,

• (b) a contract relating to succession rights,

• (c) a contract relating to rights under family law, or

• (d) a contract relating to—

• (i) the incorporation and organisation of a company, or

• (ii) the creation and organisation of a partnership.

• (5) If—

• (a) the law of a country or territory other than an EEA State is chosen by the parties to be applicable to a consumer contract, and

• (b) that contract has a close connection with the State,

this Part shall apply to the contract despite that choice.

• (6) Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008¹⁷ on the law applicable to contractual obligations (Rome I) applies where—

• (a) the applicable law has not been chosen by the parties to the contract, or

• (b) the law of an EEA State is chosen (other than an EEA State that has chosen not to be bound by that Regulation).

• (7) In this section—

“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by all subsequent amendments to that Agreement;

“EEA State” means a state which is a contracting party to the EEA Agreement.

128. Application of Part in relation to implied term of consumer contract

128. No term may be implied into a consumer contract that would be unfair in accordance with this Part if it were an express term of such a contract.

Chapter 2 Unfair terms in consumer contracts

129. Unfair term not binding

129. (1) An unfair term of a consumer contract is not binding on the consumer.

• (2) Subsection (1) does not prevent the consumer from relying on the unfair term if the consumer chooses to do so.

• (3) If a consumer contract is capable of continuing in existence without the unfair term, it shall continue to bind the parties.

130. Meaning of “unfair”

130. (1) A term of a consumer contract is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

• (2) In assessing whether a term of a consumer contract is unfair, the following matters shall in particular be taken into account—

• (a) the nature of the subject matter of the consumer contract,

• (b) whether the term of the consumer contract complies with the requirements referred to in section 134(2),

• (c) all of the circumstances relating to the conclusion of the consumer contract, and

• (d) the other terms of the consumer contract or of any other contract (including a consumer contract) on which it is dependent.

• (3) In assessing whether a term of a consumer contract complies with the requirement of good faith, regard shall be had in particular to—

• (a) the strength of the bargaining positions of the parties,

• (b) whether the consumer had an inducement to agree to the term,

• (c) whether the goods were, or the digital content, digital service, service or other subject matter of the contract was, sold or supplied to the special order of the consumer, and

• (d) the extent to which the trader has—

• (i) dealt fairly and equitably with the consumer, and

• (ii) taken the consumer’s legitimate interests into account.

• (4) Nothing in this section affects the operation of the following provisions:

• (a) section 39 (exclusion or limitation of liability of trader (Part 2));

• (b) section 71 (exclusion or limitation of liability of trader (Part 3));

• (c) section 94 (restriction on exclusion or limitation of liability of trader (Part 4));

• (d) section 132 (consumer contract terms that are always unfair).

131. Exclusion from assessment for unfairness

131. (1) Subject to subsections (2) to (4), a term of a consumer contract shall not be assessed for unfairness under section 130 to the extent that—

• (a) it specifies the main subject matter of the contract and lays down the essential obligations under it, or

• (b) it relates to the adequacy of the price or remuneration payable under the contract as against the goods, digital content, digital service, service or other subject matter of the contract supplied in exchange for such price or remuneration.

• (2) A term of a consumer contract is excluded from assessment for unfairness under section 130 only if it is transparent in accordance with section 134.

• (3) The reference in subsection (1)(b) to the price or remuneration payable under the contract does not include—

• (a) a payment that is incidental or ancillary to the price or remuneration payable under the contract for the goods, digital content, digital service, service or other subject matter of the contract supplied in exchange for such price or remuneration, or

• (b) a payment that is contingent on whether a particular event occurs or not.

• (4) Subsection (1) does not apply to a term of a consumer contract that is presumed to be unfair under section 133(1).

132. Consumer contract terms that are always unfair

132. (1) Subject to subsections (2) and (3), a term of a consumer contract shall always be unfair if its object or effect is—

• (a) to exclude or limit the liability of a trader for the death of or personal injury to a consumer arising from an act or omission of the trader,

• (b) to require a consumer to pay for goods that have not been delivered or digital content, a digital service or a service that has not been supplied,

• (c) to impose on a consumer a burden of proof that, according to the applicable law, would otherwise be on a trader,

• (d) to exclude or hinder a consumer’s right to take legal action or exercise a legal remedy, including by requiring the consumer to take a dispute to an arbitration procedure that is not governed by law,

• (e) to require a consumer to bear his or her own costs in respect of any arbitration,

• (f) to give a trader the exclusive right to determine whether goods are, or digital content, a digital service or a service is, in conformity with the contract,

• (g) to give a trader the exclusive right to interpret any term of the contract,

• (h) to grant the trader a shorter notice period to terminate the contract than the notice period required of the consumer, or

• (i) to confer exclusive jurisdiction for disputes arising under the contract on a court in the place where a trader is domiciled unless the consumer is also domiciled in that place.

• (2) Subsection (1)(a) does not apply—

• (a) to a consumer contract in so far as it is a contract of insurance, including a contract to pay an annuity on human life, or

• (b) to a consumer contract so far as it relates to the creation or transfer of an interest in land.

• (3) Subsection (1)(a) does not apply to the liability of an occupier of premises to a person who obtains access to the premises for recreational purposes if—

• (a) the person suffers loss or damage because of the dangerous state of the premises, and

• (b) allowing the person access for recreational purposes does not relate to the occupier’s trade, business, craft or profession.

• (4) Subsection (1)(a) does not affect the validity of any discharge or indemnity given by a person in consideration of the receipt by that person of compensation in settlement of any claim that the person has.

• (5) For the purposes of subsection (1)(a), a consumer shall not be deemed to have voluntarily accepted any risk merely because he or she agreed to or knew about a term of a consumer contract that purported to exclude the trader’s liability for death or personal injury.

• (6) In this section, “personal injury” has the same meaning as it has in the Civil Liability Act 1961.

133. Consumer contract terms presumed to be unfair

133. (1) Part 1 of Schedule 5 contains an indicative and non-exhaustive list of terms of consumer contracts that shall be presumed to be unfair for the purposes of this Part.

• (2) Part 1 of Schedule 5 is subject to the provisions of Part 2 of that Schedule.

• (3) Subject to section 131, a term of a consumer contract referred to in Part 1 of Schedule 5 may be assessed for unfairness under section 130.

• (4) The Minister may by regulations specify further terms of consumer contracts that shall be presumed to be unfair for the purposes of this Part.

• (5) The Minister may make regulations under subsection (4) only where the Minister is satisfied, after consultation with such persons as the Minister considers appropriate, that it is necessary in the interests of consumer protection and fair competition to do so.

134. Consumer contract terms to be transparent

134. (1) A trader shall ensure that the terms of a consumer contract are transparent.

• (2) A term of a consumer contract is transparent if—

• (a) the term is expressed in concise, plain and intelligible language,

• (b) in the case of a term that is in writing, the term is legible and presented clearly,

• (c) the term is made available to the consumer in a manner that gives the consumer a reasonable opportunity to become acquainted with it before the conclusion of the contract, irrespective of whether or not such an opportunity is availed of,

• (d) in the case of a term that is novel or onerous, the term has specifically been brought to the consumer’s attention in such a way that the average consumer would be aware of the term,

• (e) any costs or other financial consequences deriving from the term would be comprehensible to the average consumer, and

• (f) the term complies with such other requirements as may be prescribed.

• (3) In assessing the transparency of a term of a consumer contract, the following matters shall in particular be taken into account—

• (a) the nature of the subject matter of the contract,

• (b) the means by which the contract is communicated and presented to the consumer,

• (c) the other terms of the contract or of any other contract on which it is dependent,

• (d) compliance with any obligations relating to the provision of information to the consumer imposed by an enactment (including this Act) which require to be complied with before the conclusion of the consumer contract, and

• (e) all the circumstances relating to the conclusion of the contract.

• (4) In case of dispute, it shall be for the trader to show that a term of a consumer contract is transparent.

• (5) If a consumer contract is directed at a particular group of consumers, any reference to the average consumer shall be read as a reference to the average member of that group.

• (6) Before making regulations under subsection (2)(f) the Minister shall consult such persons as he or she considers appropriate.

• (7) In this section—

“novel”, in relation to a term of a consumer contract, means a term which may be considered new or original by reference to existing or established market practice in the relevant sector or industry;

“the average consumer”, subject to subsection (5), means a consumer who is reasonably well-informed, reasonably observant and circumspect.

135. Interpretation of term of consumer contract

135. (1) Where there is doubt about the meaning of a term of a consumer contract, the interpretation that is most favourable to the consumer shall prevail.

• (2) Subsection (1) shall apply to the interpretation of a term in proceedings on an application to a court for a declaration or injunction under section 137.

136. Duty of court to consider whether term of consumer contract unfair

136. (1) In proceedings before a court relating to a term of a consumer contract, the court shall determine whether the term is unfair irrespective of whether a party to the proceedings has raised that question or indicated an intention to raise it.

• (2) Subsection (1) shall not apply unless the court considers that it has before it sufficient legal and factual material to enable it to determine whether the term is unfair.

137. Application to court for declaration or injunction

137. (1) On an application by an authorised body for a declaration that a term of a consumer contract is unfair, the court may make an order—

• (a) declaring that the term of the consumer contract is unfair,

• (b) prohibiting the use or continued use in any consumer contract of such a term or similar terms of like object or effect, and

• (c) imposing such other conditions as it considers appropriate, including in particular—

• (i) a requirement that the trader publish a corrective statement, at the trader’s own expense and in any manner the court considers appropriate, in respect of the matter which is the subject of the order, or

• (ii) a requirement that the trader provide to each consumer who is party to the contract to which the order relates an amended contract which does not contain the term which has been declared to be unfair.

• (2) On an application by an authorised body for a declaration as to the proper interpretation of a term drawn up for general use as a term of a consumer contract, the court may make such a declaration.

• (3) Before making an application under subsection (1) or (2), an authorised body shall cause to be published—

• (a) in Iris Oifigiúil and at least two national newspapers, and

• (b) in such other manner as the court may direct,

notice of intention to apply to the court for a declaration under the subsection concerned.

• (4) An authorised body may apply for an injunction (including an interim injunction) against any trader using, or recommending the use of, a term which the authorised body considers to be an unfair term.

• (5) Where an application is made under subsection (4), the court may grant an injunction on such terms, including conditions referred to in subsection (1)(c), as it considers appropriate.

• (6) An injunction granted pursuant to subsection (4) may relate not only to the use of a particular contract term but to any similar term, or a term having like effect, used or recommended for use by any trader.

• (7) In the exercise of its jurisdiction under subsection (1), (2) or (5) the court shall take account of all the interests involved and in particular the public interest in the protection of consumers.

• (8) Every person claiming to have an interest in an application under subsection (1) or (2) shall be entitled to appear before and to be heard by the court on the hearing of the application.

• (9) An application under subsection (1), (2) or (4) by an authorised body, other than the Competition and Consumer Protection Commission, shall be on notice to the Commission.

• (10) On any application under subsection (1), (2) or (4) it shall not be necessary for an authorised body to prove—

• (a) probable loss or damage,

• (b) actual loss or damage, or

• (c) recklessness or negligence on the part of the trader.

• (11) Subsections (1), (2) and (4) are without prejudice to the right of a consumer to rely upon the provisions of this Part in any case before a court of competent jurisdiction.

• (12) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the trader is ordinarily resident or carries on any profession, trade or business.

• (13) In this section, “court” means—

• (a) the High Court, or

• (b) the Circuit Court.

138. Transfer from Circuit Court to High Court

138. (1) If, in relation to an application under section 137 to the Circuit Court, that court becomes of the opinion, during the hearing of the application, that it is not appropriate for the Circuit Court to deal with the application, it may, if it so thinks fit, transfer the application to the High Court.

• (2) Subsection (1) is without prejudice to the jurisdiction of the Circuit Court to determine an application under section 137 which, at the time of the making of the application, it was satisfied it had jurisdiction to deal with.

• (3) Where an application is transferred to the High Court under subsection (1), the High Court shall be deemed to have made any order of a procedural nature that was made by the court from which it was transferred in the proceedings relating to the application.

139. Publication of order made by court under section 137(1)

139. (1) Subject to subsection (3), where a court makes an order under section 137(1) declaring that a term of a consumer contract is unfair—

• (a) the authorised body that made the application for the order, and

• (b) where it did not make the application for the order, the Competition and Consumer Protection Commission,

shall publish, before the expiration of the period specified in subsection (2), a copy of the order on its website.

• (2) The period referred to in subsection (1) is the period of 90 days beginning on—

• (a) where no appeal is brought against the order made under section 137(1), the day on which the period for bringing an appeal expires, or

• (b) where such an appeal is brought, the day on which the appeal is finally determined or is withdrawn or abandoned.

• (3) Subject to subsection (5), where the authorised body and, where it did not make the application for the order, the Competition and Consumer Protection Commission, consider that it would be—

• (a) in the interests of consumer protection, or

• (b) necessary in order to comply with a legal or regulatory requirement,

they may, instead of publishing a copy of the order as required by subsection (1), publish in such form and manner as they consider appropriate a notice that sets out the term of a consumer contract that the court has declared to be unfair, without disclosing information specified in subsection (4).

• (4) The information referred to in subsection (3) is—

• (a) information that would identify the parties, and

• (b) where subsection (3)(b) applies, information that is not permitted to be disclosed under that legal or regulatory requirement.

• (5) Where subsection (3) applies, both the authorised body and, where it did not make the application for the order, the Competition and Consumer Protection Commission shall publish the same notice.

140. Offence

140. (1) This section applies where an authorised body—

• (a) publishes under section 139(1) a copy of an order under section 137(1) declaring that the term of a consumer contract to which the order relates is unfair, or

• (b) publishes a notice under section 139(3) setting out that term.

• (2) Where, after the date on which the authorised body publishes an order or notice in respect of which this section applies, a trader—

• (a) enters into a consumer contract containing the term to which the order or notice, as the case may be, relates, or

• (b) seeks to rely on that term in a consumer contract (whenever concluded),

the trader commits an offence.

PART 7 Proceedings and penalties

141. Interpretation (Part 7)

141. In this Part, “relevant authority” means—

• (a) the Competition and Consumer Protection Commission,

• (b) the Commission for Communications Regulation,

• (c) the Central Bank of Ireland, or

• (d) such other body as may be prescribed.

142. Offences: penalties

142. (1) A person who commits an offence under this Act shall be liable—

• (a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or to both, or

• (b) on conviction on indictment to a fine not exceeding €60,000 or to imprisonment for a term not exceeding 18 months or to both.

• (2) Where a court is determining the sentence to impose on a person convicted of an offence under Part 5 or 6, it shall take account, so far as applicable, of the following indicative and non-exhaustive criteria:

• (a) the nature, gravity, scale and duration of the infringement;

• (b) any action taken by the person to mitigate or remedy the damage suffered by consumers;

• (c) any previous infringements of the provisions of any of those Parts by the person;

• (d) the financial benefits gained or losses avoided by the person due to the infringement, if the relevant data are available;

• (e) any penalties imposed on the person for the same infringement in other Member States in cross-border cases where information about such penalties is available through the mechanism established by Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017¹⁸ on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No. 2006/2004;

• (f) any other aggravating or mitigating factors applicable in the circumstances of the case.

143. Liability for offences by body corporate

143. (1) Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to be attributable to any wilful neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, commits an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

• (2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

144. Defence of due diligence

144. In proceedings for an offence under this Act, it shall be a defence for the defendant to prove that he or she exercised due diligence and took all reasonable precautions to avoid the commission of the offence.

145. Convicted persons liable for costs and expenses of proceedings and investigation

145. (1) On convicting a person of an offence under this Act, the court shall, unless satisfied that there are special and substantial reasons for not so doing, order the person to pay to the relevant authority the costs and expenses, measured by the court, incurred by the relevant authority in relation to the investigation, detection and prosecution of the offence.

• (2) An order for costs and expenses under subsection (1) is in addition to and not instead of any fine or penalty the court may impose.

146. Convicted traders liable to compensate consumers for loss or damage

146. (1) If a trader is convicted of an offence under this Act, the relevant authority that brought the proceedings in which the trader was convicted may, on behalf of an aggrieved consumer who consents to the application, apply to the court for an order (a “compensation order”) requiring the trader (the “trader concerned”) to pay an amount of money the court considers appropriate compensation in respect of any loss or damage to that consumer resulting from that offence.

• (2) A compensation order may be instead of or in addition to any fine or penalty the court may impose on the trader concerned.

• (3) The compensation payable under a compensation order—

• (a) shall be of such amount as the court considers appropriate (though not exceeding the amount set by law as the limit of the court’s jurisdiction in tort), having regard to any evidence and to any submissions made by or on behalf of the trader concerned, the aggrieved consumer, the relevant authority or, where the relevant authority is not the prosecutor, the prosecutor, and

• (b) shall not exceed the amount of the damages that, in the opinion of the court, the aggrieved consumer would be entitled to recover in an action under section 34 or, as the case may be, section 73 or 95 in respect of the same failure to comply with a requirement of this Act.

• (4) An application shall not be made under subsection (1) if the aggrieved consumer has brought an action under section 34 or, as the case may be, section 73 or 95 against the trader concerned and the action is in respect of the same failure to comply with a requirement of this Act for which the trader concerned is convicted.

• (5) If the amount of compensation payable under a compensation order is paid to the aggrieved consumer under this section and the consumer subsequently commences an action under section 34 or, as the case may be, section 73 or 95 and is awarded damages by the court in respect of the same failure to comply with a requirement of this Act, the compensation order is deemed to be in satisfaction of so much of the awarded damages as is equal to the first-mentioned amount.

• (6) If the trader concerned does not comply with a compensation order—

• (a) within the time ordered by the court, or

• (b) within 30 days after the order is made, if no time is specified in the order,

the aggrieved consumer may enter judgment in the District Court or, as appropriate, the Circuit Court by filing the order with that court in the District Court district or, as appropriate, the circuit where the conviction was entered.

• (7) A judgment entered in the District Court or the Circuit Court under subsection (6) is enforceable against the trader concerned in the same manner as if it were a judgment rendered in that court in civil proceedings.

147. Prosecution of summary offences

147. (1) Summary proceedings for an offence under Part 2 or 3 may be brought and prosecuted by the Competition and Consumer Protection Commission.

• (2) Summary proceedings for an offence under Part 4 or 6 may be brought and prosecuted by—

• (a) the Competition and Consumer Protection Commission,

• (b) the Commission for Communications Regulation in relation to an offence relating to a function that is exercisable by that Commission, or

• (c) the Central Bank of Ireland in relation to an offence relating to a function that is exercisable by the Bank.

• (3) Summary proceedings for an offence under Part 5 may be brought and prosecuted by—

• (a) the Competition and Consumer Protection Commission, or

• (b) the Commission for Communications Regulation in relation to an offence relating to a function that is exercisable by that Commission.

PART 8 Amendment of Consumer Credit Act 1995

148. Amendment of section 2 of Act of 1995

148. Section 2 of the Act of 1995 is amended—

• (a) in subsection (1), by the insertion of the following definitions:

“‘Act of 2022’ means the Consumer Rights Act 2022;

‘commercial guarantee’, in relation to a hire-purchase agreement, means any undertaking by an owner or producer to a hirer (in addition to the owner’s legal obligation to supply goods in conformity with the agreement) 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 hire-purchase agreement;

‘compatibility’ means the ability of goods to function with hardware or software with which goods of the same type are normally used without the need to convert the goods, hardware or software;

‘delivery’ means voluntary transfer of possession from one person to another;

‘digital content’ has the meaning assigned to it by the Act of 2022;

‘digital service’ means—

• (a) a service that allows a hirer 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 hirer or any other user of the 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;

‘functionality’ means the ability of goods to perform their functions having regard to their purpose;

‘goods’ has the meaning assigned to it by the Act of 2022;

‘goods with digital elements’ has the meaning assigned to it by the Act of 2022;

‘guarantor’ means—

• (a) an owner,

• (b) a producer, or

• (c) any other person who provides a commercial guarantee in relation to goods let under a hire-purchase agreement;

‘producer’ means—

• (a) a manufacturer of goods,

• (b) an importer of goods into the European Union, or

• (c) 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;”,

and

• (b) by the insertion of the following subsection after subsection (9):

• “(10) In Part VI, a reference to a reasonable expectation shall be interpreted having regard objectively to the nature and purpose of the hire-purchase agreement, the circumstances of the case and the usages and practices of the parties to the agreement.”.

149. Sections 73A to 73X: Interpretation

149. The Act of 1995 is amended by the insertion of the following section after section 56:

“56A. A reference in sections 73A to 73X to goods being in conformity with a hire-purchase agreement shall be construed in accordance with section 73A(2).”.

150. Insertion of sections 73A to 73X into Act of 1995

150. (1) The Act of 1995 is amended by the insertion of the following sections after section 73: