Chapter 2

Conflicting InterestsThe Consumer

Consumer Conflict

Basic rule – ‘Caveat Emptor’ – “Let the Buyer beware” . It means that

consumers are expected to be cautions and use their common

sense.

Cause of conflict for ConsumersPoor quality of goodsOver priced productsPoor after sales service

Consumer LawA consumer is a person who buys a good or

service for their own use and not for re sale.

The two main laws in relation to consumers are

The Sale of Goods and Supply of Services Act 1980

The Consumer Protection Act 2007

The Sale of Goods and Supply of Services Act 1980This law sets outThe rights of the consumerThe responsibilities of the retailerThe remedies or redress which consumers

are entitled to.

The Sale of Goods and Supply of Services Act 1980

The Sale of Goods and Supply of Services Act 1980

Consumer RightsGoods must beOf merchantable qualityFit for its use/purposeAs describedIdentical to the sample

. Merchantable QualityGoods must be of an acceptable standard

for the price paid for them.Eg. A wooden chair must hold a person of

reasonable weight.A shop is in breach if the chair breaks.

. Fit For PurposeGoods must function as they are supposed

to.Eg. A waterproof boots must keep out the

water.A shop is in breach if the shoes leak.

. Correspond to Description

Goods & services must match their description.

Eg. A 100% Pure New Wool Jumper must be made of wool

A business is in breach if the jumper is acrylic.

5. Correspond to SampleGoods must match samples displayed or

advertised.Eg. A sample of Dulux paint is light blue.Dulux is in breach of the act if the actual tin

of paint is dark blue.

The Sale of Goods and Supply of Services Act 1980 Services must beSupplied by someone who is qualified and

has the necessary skill.Supplier must provide proper care and

diligenceAny material supplied must be of

merchantable quality.Any goods sold as part of service must be

of merchantable quality.

6. Services

Must be provided by a qualified person.Materials used must be of MQ & FFP.Eg. A hairdresser putting highlights in.In breach of the act if apprentice puts in

blonde highlights that come out blue!

The Sale of Goods and Supply of Services Act 1980 RedressIf the good does not satisfy the above rules

the customer is entitled to

The 3 R’sRefund orReplacement orRepair

The Sale of Goods and Supply of Services Act 1980

The sellers responsibilities Complaints - The retailer has legal

responsibility to solve the consumers compliant. He cannot tell consumer to go to manufacturer. It is the retailer who the consumer has the contract with.

Signs or statements limiting liability are illegal - Illegal shop signs – “no refunds”, “Credit Notes only”

10. Shop Signs

Signs cannot give the impression that consumers have no rights.

Therefore,“This does not affect your statutory rights.”

Must go on all shop signs.

Eg. Sale ½ price, no refunds

“This does not affect your statutory rights.”

Indicates that you can still get a refund if the good is not of MQ, FFP etc.

Guarantee

Guarantees cannot take away consumers rights – they are an additional right. It gives them the choice of having the goods fixed by the manufacturer, under the Act.

Guarantees must be clear and specific regarding the goods covered, who is offering it, the duration of it and the procedure

Other provisions under the Act

Inertia selling/unsolicited goods – is restricted. It refers to goods sent to people who have not ordered them, but who subsequently receive demand for payment. Any consumer who receives such goods are entitled to keep them without payment provided

The sender has not taken the goods back or been prevented from taking them back

6 months have lapsed and during this time the goods were not used or

30 days if the consumer has written to the sender saying the goods are unwanted.

Cooling Off PeriodWith some goods you have a certain

amount of time to change your mind and return the goods.

It does not apply to everything but is allowed with door to door selling

Evaluation of the ActIn my opinion I think it is a very important Act….

It sets out the legal responsibilities of retailers to ensure that new goods and services bought by consumers meet certain minimum standards i.e.)- of merchantable quality/fit for purpose.

It ensures that consumers get their money back/redress if the product or service is not up to legal standards. While the law cannot do away with faulty products, it can ensure that consumers do not lose any money if they buy one –i.e.) Redress available.

Consumers cannot be fooled into thinking they must accept a credit note by retailers who put up this sign. By banning illegal signs the law protects those who do not know their rights.

The Consumer Protection Act 2007This Act came into effect in Ireland on 1

May 2007.It replaced the Consumer Information Act,

1978.Its main function was to establish the

National Consumer Agency (which replaced the Director of Consumer Affairs).

It also updated consumer laws, some of which dated from the 19th century.

The Consumer Protection Act 2007

1. Consumer ProtectionThe act deals with unfair business-to-consumer

commercial practices. The act protects the consumer from misleading

advertisements and requires that the info in advertisements are fair and accurate.

It prohibits false product/service description

All types of communication that promotes goods/services are covered by the Act including advertisements, a notice in a shop or a claim made by a sales assistant about a product/service

Sale prices must be accurate. If something is being advertised in a sale it must have been the higher price for at least 28 consecutive days before the sale

Consumer Protection Act 2007The Act deals with unfair business-to-consumer

commercial practices, (it does not apply to dealings between businesses).

(1) Advertisements• The Act protects the consumer from misleading

advertisements.• It requires that the information in advertisements be

fair and accurate. • All types of communication that promote goods and

services is covered by the Act e.g. Advertisements, notices in shops, sales assistant claims.

• Under the Act it is illegal for an advertiser or business to make false or misleading claims about goods, services or prices.

a) It is an offence for a seller to give false or misleading information about goods.

Claims about ingredients, performance and weight must be truthful

Examples of misleading claims about goods include: Trader selling second-hand cars which

have been “clocked”, i.e. the odometer has been tampered with to show a reduced mileage

Claim that a product will help remove dandruff when there is no proof that it will do so

Claim that a product is “Made in Ireland” when in fact it was produced elsewhere

b) The Act prohibits false or misleading information about services including time, manner and place a service is provided.

Examples of misleading claims about services include:A claim that a service is provided

within 24 hours if it will actually take longer, e.g. dry cleaning, photo developing

A claim a service is available nationwide if it is not available throughout the country

c) It is an offence to give false or misleading information on previous price, actual price and recommended price of goods and services.

Example: when a retailer advertises an item’s previous price in a sale, the item must have been on sale at that price for 28 consecutive days in the previous three months.

EU Directive

The Consumer Protection Act 2007 brings into Irish law an EU Directive on misleading and aggressive commercial practices.

In short, sellers may not use practices that may lead to consumers buying products or services that they would not buy under normal circumstances.

2. Misleading PracticesMisleading advertising, misleading

information and withholding information are considered misleading practices.

Misleading practices include false or inaccurate information on the nature, main characteristics and usage or prior history of a product\service.

Example: a bakery placing a sign in the window stating: “Our Award Winning Bread”. Unless the bread has genuinely won an award this would be a misleading practice

3. Aggressive Practices

Aggressive in this context means the use of harassment or excessive influence on the consumer

Examples include:

– A mechanic has a consumer’s car at his garage and has done more work than agreed. He refuses to return the car to the consumer until he is paid in full for his work. The mechanic had not checked with the consumer before carrying out the extra work

– A trader takes consumers to a holiday club presentation at a distant location, with no apparent return journey unless consumers sign a contract to purchase another holiday

4. Prohibited Practices

The CPA also contains 32 specifically prohibited practices including:– False claims of cure for illnesses– Commercial sellers creating an impression that

they are private sellers

– Telling a consumer they have won a prize where payment is required in order to claim that prize

– Seeking payment for unsolicited goods, or the return of those goods

– Claiming the business is closing down when it is not

5. Price Display Regulations: Minister for enterprise has the power to make regulations requiring the prices of certain products be displayed in a specific manner e.g. price displayed must be inclusive of charges, fees and taxes.

6. Price Controls: can only be introduced in emergency situations and must be decided by the government.

7. Codes of Practice: The Act provides for the recognition of codes of practice drawn up by traders or trader groups and for the NCA to approve such codes. It also provides for the NCA to issue guidelines to traders about consumer protection and welfare, commercial practices and codes of practice.

Enforcement – The National Consumer AgencyThe Consumer Protection Act 2007 provides

for the following:1.The NCA can accept a written undertaking

from the trader that the practice will stop.2.The NCA can apply for a prohibition order

from the Circuit/High Court.3.On the spot penalties for offences relating

to price.4.Publication of a Consumer Protection List;

a list of traders who are in breach of the Act.

Redress1. They may decide to approach the retailer to

provide redress for the breach. Together they may agree for partial refund, alternative product etc.

2. The Consumer Protection Act allows consumers to apply to the courts for damages if they suffer loss due to misleading practices by a business.

3. The NCA may also apply to the court for an order that requires a business to pay compensation for any loss or damage to the consumer resulting from an offence.

Evaluation of the ActConsumers get fair and honest information

about what they are buying and the price they will have to pay. They cannot be mislead.

If they are mislead the law ensures that this never happens again and the shop is punished

Functions of National Consumer AgencyThe main functions of the NCA are

to:1. To promote and protect the

interests and welfare of consumers.

2. To enforce consumer law.3. To help businesses comply with

consumer law.4. To investigate suspected

offences under consumer law.

Functions 5. To refer cases to the Director of

Public Prosecutions where appropriate.

6. To advise & make recommendations on any legislation or policy which concerns consumers.

7. To make proposals for new legislation.

The National Consumer Agency

1. Inform consumers of their rights –website, shoppers rights cards, phone no.

Evaluation-I think the NCA is very worthwhile b/c good understanding of rights empowers us to make better decisions…better quality and service

2. Investigate breaches of the Act – has the power to enter business premises, take evidence and apply for search warrants

Evaluation – very worthwhile b/c it had real power to investigate business who break the law in relation to false/misleading advertising/descriptions.

3.Enforces the CPA- the NCA makes sure Businesses obey consumer legislation. It can issue on-the-spot fines, ‘name and shame’ in Consumer Protection List, ‘Prohibition Order’ to stop illegal practices.

Evaluation-the NCA has power to get the retailer to have advert changed/withdrawn. It is also very good as if consumers are lied to they have the Gvt backed organisation (NCA) & not let it happen again.

4. Conduct market research into the most important issues to Irish consumers, what areas of Law needs improving, or what info consumers need.

Evaluation –up to date research will ensure the gvt and consumers are aware of consumer scams.

5. Acts as an advocate for consumers – it promotes and protects the interests of consumers. It informs the GVT of consumer problems so that they can be sorted out by law. It advises the GVT on the impact of any new consumer law and consults with other agencies to assess the impact of their decisions on consumers

Evaluation – beneficial to have a powerful organisation that will stand up for consumer rights and ensure consumer welfare is protected.

Resolving disputes between Consumers and RetailersNon legislative methods

Legislative methods

Non legislative methods of solving Consumer Conflicts

1. Negotiation/ Complain to the retailer: go back to shop with your proof of purchase. Ask for manager and explain problem and set out what you want the shop to do to solve the problem. Know your rights under the law and insist on them.

2. Seek help from a third party

(a) The Consumer Association of Ireland – non-commercial organisation set up to protect and promote the interests of consumers. There is a membership fee to join and in return you get a Consumer Choice Magazine. It makes sure that consumers know their rights and get good quality products and service and value. Its main activities are

Carrying out Surveys of, and publishing reports into consumer p&s

Consumer advise service to help members with complaints/problems

Lobbying Government for changes and improvements to consumer rights legislation

Highlights problem areas where the interests of consumers are being neglected.

Seek improved product quality standards

(b) The National Consumer Agency

(c) Trade Associations –example SIMI, ITAA. They can act as ‘conciliators’ if negotiations prove difficult. (conciliation)

Conciliation may be necessary if negotiations prove difficult. Conciliation means getting an independent third party/conciliator to talk to both sides separately before bringing them together to help them appreciate the other position. The conciliator does not recommend a solution. Instead his role is to help both sides to reach a better understanding of each others needs so that finding an agreement is easier.

If conciliation does not work , then both sides might agree to arbitration. Arbitration means both sides agree to get an independent third party acceptable to both sides to investigate the dispute and to make a decision as to how it should be resolved. Sometimes, both sides agree in advance to accept whatever decision the arbitrator arrives at.

3. The Ombudsman The Ombudsman for public service –specialises in

dealing with consumer complaints against public sector organisation, Gvt dept, the HSE and local authorities.

No authority to investigate the Dail, Gardai, Defence forces, courts or prisons or private companies.

No power to force its recommendations to be accepted, but most public bodies comply to avoid bad publicity.

Before contacting the Ombudsman –you must have tried to solve it yourself.

The Financial Ombudsman specialises in resolving complaints against banks & financial institutions such as insurance companies and credit unions. The decision of the Ombudsman is binding on the institution involved. However if consumers are still dissatisfied they can take case to the courts.

Legislative methods The Small Claims Court

Its aim is to handle consumer claims easily, quickly and cheaply without involving a solicitor.

The consumer cannot sue for amounts greater than €2,000

An application form is to be filed and a fee of €15 has to be paid to the Local District Court or online www.smallclaims.ie

The Small Claims Registrar invites both sides to come in for an informal and private meeting to present their side of the case before making a recommendation.

Unlike other courts the SCC cannot force an agreement but is effective at persuading sellers to respect consumers rights.

If the SCR fails to solve it, the case is referred to the District Court which will be held in public and each party cross examined and evidence must be given under oath.

Evaluation of The SCCIn my opinion, the small claims court is very effective

as …It ensures that all consumers can get justice easily,

quickly and cheap without hiring a solicitorEvery consumer can get justice locally – no need to

go to Dublin..Small Claims online is an excellent service because

anyone in Ireland can take a case anywhere at their convenience

Disadvantage –not legally binding as SCC cannot force an agreement, but it is effective at persuading sellers to respect consumers rights. If not happy with outcome you can take case to District Court