The term “Cyber Monday” was created by marketing companies to persuade people to shop online. It is the Monday after Thanksgiving in the US and it is arguably one of the biggest online shopping days of the year. In Ireland around €4bn of the country’s annual €35bn retail spending is now done online. As most of us know when we buy goods in a shop under Irish consumer law the goods must be of merchantable quality, fit for the purpose intended and as described. But what is the position when one buys online or from “a distance”?

The Law

The European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations, 2001 give effect to Directive 97/7/EC (known as  the “Distance Selling Directive”). The Directive only applies to EU based websites.

What rights does the Distance Selling Directive give the Irish Consumer?

Under Schedule 3 of the Regulations the online seller must give the consumer specific information about the product they are buying such as:-

-Who is the supplier?;

-The main characteristics of the goods;

-The prices of the goods (including taxes);

-Delivery costs (where apporpriate);

-How is the product to be delivered and payment made for same?;

-What cancellation rights are there?

-The period for which the offer or the price remains valid;

More information available for consumers who buy online

Under Regulation 5(2) the following information must accompany the information already provided such as:-

-information on conditions and procedures for exercising a right of cancellation;

-the geographical address of the place of business of the supplier to which the consumer may address any complaints;

-information on after-sales services and guarantees which exist;

-conditions for cancelling the contract in the event that it is of unspecified duration or its duration exceeds one year.

What goods does the Directive apply to?

Under Regulation 3 a “distance contract” means a contract between a supplier and a consumer which relates to goods and services other than one which relates to financial services, made by means of automatic vending machines or automated commercial premises, made in respect of the construction and sale of immovable property or relating to other immovable property rights, other than the rental of such property or rights in such property, or made at an auction.

Cooling off period

Under Regulation 6 of the Regulations there is an implied condition in a distance contract that the consumer has a period of 7 working days in which to cancel the distance contract without giving a reason. Also, if the consumer exercises that right of cancellation they shall not incur any charges or penalties for so doing except the cost of returning the goods.

Performance of Contract

Under Regulation 9 the supplier shall perform the distance contract within a period of 30 days from the day following that on which the consumer forwarded his or her order to the supplier.Where goods are unavailable, the supplier may provide the consumer with goods and services of equivalent quality and price if prior to making the contract the consumer is notified in a clear and comprehensible manner that

– the consumer may, in these circumstances, be furnished with equivalent goods and,

– if he or she is furnished with equivalent goods and he or she chooses to exercise his or her right of cancellation in accordance with Regulation 6 the cost of returning the goods shall be borne by the supplier.

Niall Colgan is a Cork based Solicitor with over 10 years in private practice.

Nov 19, 13