i e AT 6 of 2016 CONSUMER PROTECTION (AMENDMENT) ACT 2016

Transcription

1 i e AT 6 of 2016 CONSUMER PROTECTION (AMENDMENT) ACT 2016

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3 Consumer Protetion (Amendment) At 2016 Index i e CONSUMER PROTECTION (AMENDMENT) ACT 2016 Index Setion Page PART 1 INTRODUCTORY 5 1 Short title Commenement Expiry... 5 PART 2 AMENDMENT OF THE CONSUMER PROTECTION ACT Amendment of the Consumer Protetion At Setion 24 repealed enforement (Parts II and III of the Consumer Protetion At 1991) Setion 26 amended Setion 29 amended Setion 46 amended ontrats to whih Part VII applies (anellation of ertain ontrats) Setion 46A inserted offene to enter into ertain ontrats Setion 47 amended anellation of ontrat Setion 47A amended failure to provide notie of anellation rights Setion 47B amended defene of due diligene Setion 47C amended liability of persons other than the prinipal offender New setion 47CA test purhases Setion 47D amended enforement powers Setion 47E amended obstrution of OFT s offiers Setion 52 substituted no ontrating-out Setion 53 amended interpretation of Part VII of the Consumer Protetion At Setion 57A amended ontrats to whih this Part applies Setion 60 amended and assoiated onsequential amendment interpretation: general Setion 62 amended self-inrimination and legal professional privilege AT 6 of 2016 Page 3

4 Index Consumer Protetion (Amendment) At New setion 62A appliation to the Island of ertain subordinate legislation and power to amend the Consumer Protetion At New Shedule 2B inserted meaning of exepted ontrat for the purposes of setion Page 4 AT 6 of 2016

5 Consumer Protetion (Amendment) At 2016 Setion 1 i e CONSUMER PROTECTION (AMENDMENT) ACT 2016 Signed in Tynwald: 19 April 2016 Reeived Royal Assent: 19 April 2016 Announed to Tynwald: 19 April 2016 AN ACT to amend the Consumer Protetion At 1991 in respet of old alling and the anellation of ertain ontrats; and for onneted purposes. BE IT ENACTED by the Queen s Most Exellent Majesty, by and with the advie and onsent of the Counil and Keys in Tynwald assembled, and by the authority of the same, as follows: PART 1 INTRODUCTORY 1 Short title The short title of this At is the Consumer Protetion (Amendment) At Commenement (1) This At (other than this setion and setion 1) omes into operation on suh day or days as the Isle of Man Offie of Fair Trading by order appoints and different days may be appointed for different provisions and for different purposes. (2) An order under subsetion (1) may make suh onsequential, inidental, transitional and saving provisions as the Isle of Man Offie of Fair Trading onsiders neessary or expedient. 3 Expiry (1) This At expires on the day after its promulgation if all of its provisions are in operation on its promulgation; or otherwise, on the day after the last provision is brought into operation. AT 6 of 2016 Page 5

6 Setion 4 Consumer Protetion (Amendment) At 2016 (2) The expiry does not () revive any enatment amended by this At as the enatment operated before the amendment ommened; revive anything not in operation or existing when the amendment took effet; or affet the ontinuing operation of the amendment. PART 2 AMENDMENT OF THE CONSUMER PROTECTION ACT Amendment of the Consumer Protetion At 1991 The Consumer Protetion At 1991 is amended in aordane with setions 5 to Setion 24 repealed enforement (Parts II and III of the Consumer Protetion At 1991) Setion 24 is repealed. 6 Setion 26 amended In setion 26(1) for a duly authorised offier substitute «an offier». 7 Setion 29 amended In the heading to setion 29 for authorised offier substitute «offier of OFT». 8 Setion 46 amended ontrats to whih Part VII applies (anellation of ertain ontrats) (1) Setion 46 is amended as follows. (2) For subsetion (1) substitute «(1) This Part applies to a ontrat (a relevant ontrat ) between a onsumer and a trader whih is for the supply of goods or servies to the onsumer by a trader and whih is made during an unsoliited visit by the trader to the onsumer s home or plae of work, or to the home of another individual; during an exursion organised by the trader away from the trader s permanent or temporary business premises; Page 6 AT 6 of 2016

7 Consumer Protetion (Amendment) At 2016 Setion 9 (1A) (1B) () (d) as the result of a telephone all by or on behalf of the trader to the onsumer whih the onsumer neither initiated nor requested; or after an offer made by the onsumer during suh a visit, exursion or telephone all. Subsetion (1) is subjet to the qualifiations in subsetions (1B) and (1C). This Part does not apply to an exepted ontrat. (1C) OFT may by order presribe () ontrats to whih this Part does not apply; persons or lasses of persons to whose ontrats this Part does not apply; other irumstanes where this Part is not to apply. An order under this subsetion may amend or repeal any provision of this Part (inluding a provision ontained in Shedule 2B) if it appears to OFT to be neessary or expedient to do so in onsequene of or in onnetion with the provision made by the order.». (3) For subsetions (2) and (3) substitute «(2) Shedule 2B has effet to define exepted ontrat». 9 Setion 46A inserted offene to enter into ertain ontrats After setion 46 insert «46A Offene to enter into ertain ontrats (1) A person ommits an offene if, as a trader, he or she enters into a relevant ontrat. (2) A person guilty of an offene under subsetion (1) is liable on onvition on information, to ustody for not more than 2 years, a fine or both; on summary onvition, to ustody for a term not exeeding 6 months, a fine not exeeding 10,000, or both.». 10 Setion 47 amended anellation of ontrat (1) Setion 47 is amended as follows. (2) In subsetion (1) for No ontrat to whih this Part applies shall be substitute «A relevant ontrat is not»; and AT 6 of 2016 Page 7

8 Setion 11 Consumer Protetion (Amendment) At 2016 for 7 days substitute «14 days». (3) For subsetion (2) substitute «(2) The notie must be dated and delivered to the onsumer if the onsumer and the trader are in the same plae when the ontrat is made, at the time the ontrat is made; and in any other ase within 48 hours of the time at whih the ontrat is made.» (4) In subsetion (3) for the words preeding a notie in writing substitute «If within the period of 14 days following the making of the ontrat in a ase falling within subsetion (2); or following the delivery of a notie under subsetion (1) in a ase falling within subsetion (2), the onsumer serves». 11 Setion 47A amended failure to provide notie of anellation rights (1) Setion 47A is amended as follows. (2) In subsetion (1) (3) In subsetion (2) for a ontrat to whih this Part applies substitute «a relevant ontrat»; and omit (or, in the ase mentioned in subsetion 46(1)(), has failed). after paragraph «and» is inserted; and paragraph () and the and immediately preeding it are repealed. (4) For subsetion (3) substitute «(3) A person guilty of an offene under subsetion (1) is liable (5) Subsetion (4) is repealed on onvition on information to ustody for a term not exeeding 2 years, a fine or both; on summary onvition, to ustody for a term not exeeding 6 months, a fine not exeeding 10,000 or both.». 12 Setion 47B amended defene of due diligene In setion 47B(1) for setion 47A substitute «setion 46A or 47A». Page 8 AT 6 of 2016

9 Consumer Protetion (Amendment) At 2016 Setion Setion 47C amended liability of persons other than the prinipal offender In setion 47C(1) and (2) for setion 47A substitute «setion 46A or 47A». 14 New setion 47CA test purhases After setion 47C insert «47CA Test purhases OFT may make suh purhases of goods, and seure the provision of suh servies, as may appear expedient for the purpose of determining whether or not the provisions of this Part are being omplied with.». 15 Setion 47D amended enforement powers (1) Setion 47D is amended as follows (2) In subsetion (1) for a duly authorised offier substitute «an offier»; and for setion 47A substitute «setion 46A or 47A». (3) After subsetion (5) insert «(6) In this setion doument inludes information reorded in any form. (7) The referene in subsetion (1) to prodution of douments is, in the ase of a doument whih ontains information reorded otherwise than in a legible form, a referene to the prodution of a opy of the information in a legible form.». 16 Setion 47E amended obstrution of OFT s offiers (1) Setion 47E is amended as follows (2) In subsetion (1)() omit authorised. (3) For the setion heading substitute «Obstrution of OFT s offiers». 17 Setion 52 substituted no ontrating-out For setion 52 substitute «52 No ontrating-out (1) A term ontained in a ontrat is void if, and to the extent that, it purports to disapply this Part (or any of its provisions) if this Part would otherwise apply. AT 6 of 2016 Page 9

10 Setion 18 Consumer Protetion (Amendment) At 2016 (2) A term ontained in a relevant ontrat is void if, and to the extent that, it would make the proper law of the ontrat the law of a plae outside the Island; or require any matter to be determined otherwise than by arbitration or by the Manx ourts. (3) For the purposes of subsetion (2) arbitration is to be onstrued in aordane with the Arbitration At 1976; and the Manx ourts means () the High Court; the Judiial Committee of the Privy Counil; and the Court of Justie of the European Communities.» 18 Setion 53 amended interpretation of Part VII of the Consumer Protetion At 1991 (1) Setion 53 is amended as follows. (2) In subsetion (1) at the beginning of the alphabetial list of definitions insert «arbitration means arbitration in aordane with the Arbitration At 1976;» omit the definition of harge on land ; () for the definition of onsumer substitute «onsumer means an individual who in making a relevant ontrat is ating for purposes whih an be regarded as outside his or her business;»; (d) for the definition of trader substitute «trader means a person who, in making a relevant ontrat, is ating in his or her business apaity and inludes anyone ating in the name or on behalf of the trader;»; (e) at the appropriate points in the alphabetial list insert the following definitions «relevant ontrat has the meaning given in setion 46(1);»; «soliited visit has the meaning given in subsetion (1A) (and unsoliited visit shall be onstrued aordingly);» «telephone all inludes any form of voie ommuniation by means of a teleommuniation system; Page 10 AT 6 of 2016

11 Consumer Protetion (Amendment) At 2016 Setion 18 any form of ommuniation omprising or inluding the transmission of sound by means of the internet;»; and «unsoliited visit see the definition of soliited visit above.». (3) After subsetion (1) insert «(1A) A soliited visit is a visit by a trader, whether or not he or she is the trader who supplies the goods or servies, to a onsumer s home or plae of work or to the home of another individual, whih is made at the express request of the onsumer. (1B) But neither of the following is a soliited visit a visit by a trader whih is made after he or she, or a person ating in his or her name or on his or her behalf (i) ontats the onsumer (otherwise than at the onsumer s express request) and indiates during the ourse of the ontat (either expressly or by impliation) that he or she, or the trader in whose name or on whose behalf he or she is ating, is willing to visit the onsumer; or (ii) visits the onsumer (otherwise than at the onsumer s express request) and indiates during the ourse of that visit (either expressly or by impliation) that he or she, or the trader in whose name or on whose behalf he or she is ating, is willing to make a subsequent visit to the onsumer; a visit during whih a ontrat is made whih relates to goods or servies whih are materially different, either in nature or quantity, from those originally requested by the onsumer. For the purposes of subsetion (1A) a visit is not soliited by virtue of the ontat or visit being preeded by advertising material whih the trader has delivered, or has aused to be delivered to the () onsumer s home; onsumer s plae of work; or home of another individual. (1C) For the purposes of this setion advertising means any form of representation whih is made in onnetion with a business in order to promote the supply or transfer of a produt or servie; and ontat inludes (without limiting the breadth of that word) ontating by telephone or by means of an eletroni ommuniation within the meaning of setion 12 of the Eletroni Transations At 2000.». AT 6 of 2016 Page 11

12 Setion 19 Consumer Protetion (Amendment) At Setion 57A amended ontrats to whih this Part applies After setion 57A(4) insert «(5) This Part does not apply to a relevant ontrat made in the irumstanes set out in setion 46(1)().» 20 Setion 60 amended and assoiated onsequential amendment interpretation: general (1) Setion 60(1) is amended as follows omit the definition of the Board. for the definition of offier substitute «offier means a person authorised in writing to assist OFT in disharging its funtions under this At;» and () after that definition insert «OFT means the Isle of Man Offie of Fair Trading;». (2) Consequent upon subsetion (1) and (), for the Board in every other plae where that phrase ours in the Consumer Protetion At 1991 substitute «OFT». 21 Setion 62 amended self-inrimination and legal professional privilege For the marginal note immediately preeding setion 62 substitute «62 Self-inrimination and legal professional privilege». 22 New setion 62A appliation to the Island of ertain subordinate legislation and power to amend the Consumer Protetion At 1991 After setion 62 insert «62A Power to amend At and apply ertain subordinate legislation of the United Kingdom (1) OFT may by order modify this At in suh manner as appears to it expedient for the purpose of making this At orrespond (subjet to suh modifiations as it onsiders appropriate) with the orresponding legislation of the United Kingdom; apply to the Island as part of the law of the Island, subjet to suh modifiations as may be speified in the order, any subordinate legislation of the United Kingdom onerning matters relating to onsumer protetion. Page 12 AT 6 of 2016

13 Consumer Protetion (Amendment) At 2016 Setion 23 (2) An order under subsetion (1) may inlude provision repealing or amending any provision of an enatment whih is inonsistent with, or is unneessary or requires modifiation in onsequene of, the order or any subordinate legislation of the United Kingdom applied to the Island by the order. (3) An order under subsetion (1) may do all or any of the following () speify the modifiations subjet to whih the subordinate legislation of the United Kingdom applies to the Island; set out the subordinate legislation of the United Kingdom applied by the order, inorporating the modifiations subjet to whih it applies to the Island; in the ase of an order applying subordinate legislation of the United Kingdom whih amends previous subordinate legislation of the United Kingdom applied to the Island, set out the previous legislation so applied as amended, inorporating the modifiations subjet to whih that legislation applies to the Island. (4) In this setion referenes to legislation of the United Kingdom inludes referenes to legislation applying in any part of the United Kingdom.». 23 New Shedule 2B inserted meaning of exepted ontrat for the purposes of setion 46 After Shedule 2A (list of terms whih may be regarded as unfair) insert «Shedule 2B MEANING OF EXCEPTED CONTRACT FOR THE PURPOSES OF SECTION 46 [SECTION 46(2)] 1 Meaning of exepted ontrat A ontrat is an exepted ontrat if it is within any of the following paragraphs. 2 Land transations (1) A ontrat is within this paragraph if it is one for the sale or other disposition of land, or any estate or interest in land (inluding a harge on land); to finane the purhase of land; AT 6 of 2016 Page 13

14 Setion 23 Consumer Protetion (Amendment) At 2016 () (d) for a bridging loan in onnetion with the purhase of land; or for the onstrution or extension of a building or other eretion on land. In paragraph, harge on land inludes any seurity harged on land. (2) But a ontrat is not within this paragraph if it is a ontrat for the supply of goods and their inorporation in any land or a ontrat for the repair or improvement of a building or other eretion on land, where the ontrat is not finaned by a loan seured by a land mortgage. 3 Deliveries by roundsmen A ontrat is within this paragraph if it one for the supply of food, drink or other goods intended for urrent onsumption by use in the onsumer s household and supplied by regular roundsmen. 4 Routine atalogue sales (1) A ontrat is within this paragraph if it is one for the supply of goods or servies whih satisfies all the onditions in subparagraphs (2) to (4). (2) The ondition is that the terms of the ontrat are ontained in a trader s atalogue whih is readily available to the onsumer to read in the absene of the trader or his representative before the onlusion of the ontrat. (3) The ondition is that the parties to the ontrat intend that ontinuity of ontat will be maintained between the trader or his representative and the onsumer in relation to the transation in question or any subsequent transation. (4) The ondition is that both the atalogue and the ontrat ontain or are aompanied by a prominent notie indiating that the onsumer has a right to return to the trader or the trader s representative goods supplied to the onsumer within the period of not less than 14 days from the day on whih the goods are reeived by the onsumer; and otherwise to anel the ontrat within that period without inurring any liability, other than any liability whih may arise from the failure of the onsumer to take reasonable are of the goods while they are in the onsumer s possession. Page 14 AT 6 of 2016

15 Consumer Protetion (Amendment) At 2016 Setion 23 5 Insurane ontrats A ontrat is within this paragraph if it is a ontrat of insurane. 6 Low value ontrats A ontrat is within this paragraph if it is one under whih the total payments to be made by the onsumer do not exeed suh amount as may be presribed.». Published by Authority AT 6 of 2016 Page 15