However, a consumer is not able to treat a contract as terminated solely on the basis of a breach of satisfactory quality, fitness for purpose, description, pre-contractual disclosure or the right to provide terms in a contract. Merchants must ensure that their marketing materials, point-of-sale materials and terms and conditions comply with the Consumer Rights Act, 2015. In practice, this means that this article deconstructs mobile phone contracts as an example of long-term contractual relationships in four jurisdictions to show that there are three elements that define consumer protection. The elements are the duration of the contract, the extension of the agreement and the unilateral modification. Each of these factors is regulated differently in each jurisdiction, but taken together, similar levels of consumer protection are identified. The authors show that the reason for the different weighting is determined by regulation (specific or general); external factors such as technological development, geography or commercial considerations; and through broader cultural considerations. Comparing these characteristics across jurisdictions shows that regulatory intervention ultimately plays little role in drafting contracts unless an overwhelming policy objective is pursued, meaning that in most cases regulators would be asked to avoid or reduce regulation of mobile phones and other long-term contracts. Contrary to the persistence of the contract in German law, consumers in the common law courts can in principle terminate their contract before the end of the contract. This constitutes a refusal of the contract and establishes a claim for damages by the service provider against the customer.
In practice, the amount of damages is normally fixed in the contractual agreement in the form of an early repayment penalty (Ofcom 2015b, paragraph 69). In the United Kingdom, those costs are calculated by reference to the price of the monthly subscription multiplied by the number of months remaining in the contract (Ofcom 2015b, paragraph 58). OFCOM, the UK telecoms regulator, has identified the early cancellation fee as a default fee payable due to the consumer`s breach of contract and not as a price to be paid in exchange for the service provided. The fee is therefore subject to the assessment of fairness in the light of the definitions in the Consumer Rights Act 2015 (Ofcom 2015b, paragraph 73). The fees must therefore adequately reflect the actual loss expected from the supplier. In practice, suppliers charge an amount equal to the remaining monthly payments, with a discretionary reduction if this amount is paid in full. It is doubtful whether this is fully compatible with the requirement of fairness, given that no rebate is granted for the supplier`s avoided costs or other savings resulting from the early termination of the customer (Ofcom 2015b, paragraph 80). In such cases, the consumer may be entitled to claim only the costs of rehabilitation work carried out by another trader.
But even in these cases, it makes sense for them to first discuss their concerns and intentions with the original trader in order to try to reach an agreement about them. CBC News. (2012). The CRTC is interested in 3-year mobile phone contracts. Excerpt from: www.cbc.ca/news/canada/crtc-gets-earful-on-3-year-cellphone-contracts-1.1142269. Retrieved 17 December 2018. After 30 days, if the goods do not pass one of the 5 tests, the consumer can request a repair or replacement. The entrepreneur must do so without any cost to the consumer within a reasonable time and without significant inconvenience. If the repair or replacement delivery fails, the consumer is entitled to further repairs or replacement deliveries or he may demand a price reduction or reject the goods and demand a refund. Knowing your rights before moving forward will put you in a better position from the start. Our advice is to persevere! A contract for the production of goods is a contract for goods – If a trader manufactures goods for a consumer (for example.
B, a seamstress who makes a dress), the agreement with the consumer should be considered a contract for goods even if a service is provided. Conversely, if the final product is only proof of the provision of the services by the entrepreneur (e.B drafting of a will), the contract with the consumer is a service contract. This distinction is important because it affects the remedies available to the consumer. If necessary, the law gives the consumer the possibility to bring a civil action to impose these rights on the entrepreneur. The balancing effect can be illustrated by the initial link period in Germany, which has been 24 months since the time before the age of the mobile phone. German law allows the service provider to extend the contract for a further 12 months after the expiry of the 24 months (if the consumer has accepted it in the original contract) without having to inform the consumer. However, the Service Provider (apart from the very restrictive option mentioned above) will not be able to modify the terms during the contract. In this example, the extension in favour of the service provider is weighed against the change rules that are weighed in favour of the consumer.
In Germany, contractual periods which provide for an automatic extension for an additional limited period are also allowed in preformulated standard contracts, provided that the maximum extension period of one year provided for in Paragraph 309(9) .b BGB is not exceeded. Footnote 3 This is done without the express consent of the consumer at the time of renewal. The extension is made according to the terms of the original contract and although no new handset is provided, the price remains the same; this was considered compatible with the Law on unfair terms (AG München 2016, p. 62). It is the consumer`s responsibility to terminate the contract before the end of the notice period. However, this approach is not representative of the civil law tradition in general. The two systems most closely linked to German law, Austria and Switzerland, do not allow automatic renewal unless the consumer has not received a reminder of the renewal too long before the end of the initial period (Maissen 2012). Similarly, under French law, the consumer is only bound by an extension of the period for a certain period if the professional has sent a reminder of the extension within one to three months before the extension. If such a reminder has not been sent, the consumer may terminate the contract at any time in accordance with the Consumer Protection Act, art. L136-1 (OECD 2011, pp. 94, 99).
Ofcom. (2011). Automatically renewable contracts: review of their effects and general status proposals. Excerpt from stakeholders.ofcom.org.uk/binaries/consultations/arcs/summary/arcs.pdf. Accessed December 17, 2018. Directive 2009/136/EC amending Directive 2002/22/EC on universal service and users` rights relating to electronic communications networks and services, Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection. However, Official Journal of the European Union L 337, 11 The consumer does not have the right to remedy a quality defect by repair or replacement if this is the case: according to the Consumer Protection Act (which replaced the Law of Sale Act of October 2015), any product you purchase must be of satisfactory quality and suitable for this purpose, as described. Under the contract, the consumer undertakes to pay the entrepreneur a sum of money and/or do something else in exchange for the services provided by the entrepreneur. This obligation is referred to in the contract as “consideration”.
If there is no consideration (i.e. if a merchant offers to provide completely free services or other obligations), no contract is concluded. Watkins, D. (2009). Subject to change: consent and lack of scruples in the case of contracts providing for a change. Cardozo Law Review, 31, 545-581. Rott, P. (2013). The adjustment of long-term supply contracts: experiences of German case law on gas prices. Revue européenne de droit privé, 21, 717-746. If you are unable to resolve this issue in-store, escalate it by officially sending a cancellation and rejection in writing to the store manager. Make it clear that you wish to terminate your contract in accordance with your consumer rights and the agreed terms and conditions, and state the reasons for doing so.
There are specific rights and remedies with respect to “digital content”. The CRTC analyzes automatic renewal as follows: “The lack of transparency in contract renewals is a central concern of consumers. This lack of transparency can have a detrimental effect on a dynamic market, as it constitutes an obstacle to the change [of mobile operators] by binding consumers to a different contractual term when they do not wish to do so` (Telecom Regulatory Policy 2013, paragraph 273). Time until then. (2015). Price history of mobile phones. Retrieved form: www.timetoast.com/timelines/history-of-cellphones-prices. Retrieved 17 December 2018. For example, a consumer downloads a movie to their device that has no sound, and the retailer accepts that they are responsible for the lack of quality and resubmits it. If the consumer requested a repair of the digital content on his device, this would be disproportionate to the fact that the trader provides a replacement download to solve the problem. The nature of the digital content and the purpose for which it was purchased or accessed by the consumer determine what constitutes a “reasonable period of time” and a “significant inconvenience”.
If a consumer has requested or consented to a repair, he may request a replacement only after a reasonable period of time has been granted to carry out the repair, as long as no significant inconvenience is caused. .