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Difference between revisions of "Opting Out and Cooling-off Periods"
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Opting Out and Cooling-off Periods (view source)
Revision as of 12:34, 11 October 2018
, 12:34, 11 October 2018→Future performance contracts and continuing service contracts
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{{REVIEWEDPLS | reviewer = [[Alison Ward]]|date= August 2018}}{{Consumer and Debt Law TOC|expanded = contracts}} | {{REVIEWEDPLS | reviewer = [[Alison Ward]]|date= August 2018}}{{Consumer and Debt Law TOC|expanded = contracts}} | ||
A party may be able to get out of a contract if there was an explicit or implied term that a party could choose to do so. As well, the law gives consumers the right to cancel certain contracts during a "'''cooling-off period'''". | A party may be able to get out of a contract if there was an explicit or implied term that a party could choose to do so. As well, the law gives consumers the right to cancel certain contracts during a "'''cooling-off period'''". | ||
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If there is no fault in a contract between a seller and a buyer, consumers generally do not have the right to change their mind and get out of the contract. There either must be a reason to get out of the contract, such as the goods being unsatisfactory, or one of the exceptions explained below must apply. | If there is no fault in a contract between a seller and a buyer, consumers generally do not have the right to change their mind and get out of the contract. There either must be a reason to get out of the contract, such as the goods being unsatisfactory, or one of the exceptions explained below must apply. | ||
If there is no reason, the only way to get out of the contract is if the seller agrees. If this is the case, the consumer and the seller are actually making a new | If there is no reason, the only way to get out of the contract is if the seller agrees. If this is the case, the consumer and the seller are actually making a new agreement — to let the consumer out of the old agreement. | ||
=== Common law exceptions === | === Common law exceptions === | ||
The consumer may be able to get out of a contract if the contract specified the consumer could choose to do so. For example, some department stores advertise that they allow consumers to return any product purchased at the store. In law, the promise in the advertisement would probably be considered a term of every sale contract the store makes (see the [[Contracts Overview]]). Or, a seller may promise a particular consumer they could return a product or the contract could be cancelled. | The consumer may be able to get out of a contract if the contract specified the consumer could choose to do so. For example, some department stores advertise that they allow consumers to return any product purchased at the store. In law, the promise in the advertisement would probably be considered a term of every sale contract the store makes (see the [[Contracts Overview]]). Or, a seller may promise a particular consumer they could return a product or the contract could be cancelled. | ||
Promises stated clearly in a contract are called “explicit terms”. The parties specifically discuss and agree to such explicit terms. Other promises that allow a contract to be cancelled might be “implied” terms. For example, if a store displays a sign reading “No | Promises stated clearly in a contract are called “explicit terms”. The parties specifically discuss and agree to such explicit terms. Other promises that allow a contract to be cancelled might be “implied” terms. For example, if a store displays a sign reading “No Refunds – Only Exchanges”, it could be argued this gives the buyer an additional contractual right of exchange, regardless of the quality of the product, since the consumer already has the legal right to return goods that are fundamentally defective. | ||
There may be either explicit or implicit limits, or both, on the contractual right of exchange. There may also be time limits. For example, some stores advertise that the consumer has a limited number of days to bring any goods back for a refund. If there is no time limit specified, the law would probably say the consumer has a reasonable time to ask for the refund. The law does not have a set definition for “reasonable time”. It varies depending on, for example, what was bought, where it was bought, and what the implied terms of the contract were. | There may be either explicit or implicit limits, or both, on the contractual right of exchange. There may also be time limits. For example, some stores advertise that the consumer has a limited number of days to bring any goods back for a refund. If there is no time limit specified, the law would probably say the consumer has a reasonable time to ask for the refund. The law does not have a set definition for “reasonable time”. It varies depending on, for example, what was bought, where it was bought, and what the implied terms of the contract were. | ||
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==== Door-to-door sales ==== | ==== Door-to-door sales ==== | ||
Many consumers believe they can only cancel door-to-door sales contracts. However, the terms of the ''Business Practices and Consumer Protection Act'' actually apply to a wider range of transactions. The Act’s cancellation provisions apply to “'''direct sales contracts''' | Many consumers believe they can only cancel door-to-door sales contracts. However, the terms of the ''[http://canlii.ca/t/84mr Business Practices and Consumer Protection Act]'' actually apply to a wider range of transactions. The Act’s cancellation provisions apply to “'''direct sales contracts'''” — contracts for goods and services entered into in person at a place other than the supplier’s permanent place of business. This covers door-to-door sales and other situations. | ||
If a direct seller makes a sale somewhere other than a permanent place of business, | If a direct seller makes a sale somewhere other than a permanent place of business, [https://www.canlii.org/en/bc/laws/stat/sbc-2004-c-2/latest/sbc-2004-c-2.html#sec21_smooth section 21(1)] says a consumer has 10 days after the date that the consumer receives the contract to cancel the contract (longer in some instances). This means that if a consumer receives a copy of a direct sales contract on February 1, for example, the consumer has up to and including February 11 to cancel. | ||
A consumer may cancel a direct sales contract not later than one year after the date the consumer receives a copy of the contract if: | A consumer may cancel a direct sales contract not later than one year after the date the consumer receives a copy of the contract if: | ||
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====Distance sales contracts==== | ====Distance sales contracts==== | ||
The ''Business Practices and Consumer Protection Act'', in | The ''Business Practices and Consumer Protection Act'', in [https://www.canlii.org/en/bc/laws/stat/sbc-2004-c-2/latest/sbc-2004-c-2.html#sec17_smooth section 17], defines '''distance sales contracts''' as contracts for the supply of goods and services that are not entered into in person, and, in the case of goods, where the consumer does not have an opportunity to inspect the goods at the time the contract is entered into (for example, online purchases or catalogue sales). | ||
A consumer has the right to cancel a distance sales contract no later than seven days after receiving a copy of it if the contract does not comply with the requirements for contracts in electronic form or otherwise comply with the content requirements of the ''Business Practices and Consumer Protection Act''. A consumer has up to 30 days to cancel a distance sales contract if the supplier does not supply the consumer with a copy of the contract within 15 days of the contract being made. | A consumer has the right to cancel a distance sales contract no later than seven days after receiving a copy of it if the contract does not comply with the requirements for contracts in electronic form or otherwise comply with the content requirements of the ''Business Practices and Consumer Protection Act''. A consumer has up to 30 days to cancel a distance sales contract if the supplier does not supply the consumer with a copy of the contract within 15 days of the contract being made. | ||
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====Future performance contracts and continuing service contracts==== | ====Future performance contracts and continuing service contracts==== | ||
'''Future performance contracts''' are defined in | '''Future performance contracts''' are defined in [https://www.canlii.org/en/bc/laws/stat/sbc-2004-c-2/latest/sbc-2004-c-2.html#sec17_smooth section 17] of the ''Business Practices and Consumer Protection Act'' as contracts for the supply of goods or services for which the supply or payment in full is not made at the time the contract is executed. '''Continuing service contracts''' are future performance contracts that provide for the performance of services on a continuing basis. Examples of continuing service contracts are gym memberships and dance lesson contracts. | ||
A consumer has the right to cancel a future performance contract no later than one year after the date the consumer receives a copy of the contract if the contract does not contain the information required by the ''Business Practices and Consumer Protection Act'', such as the supply date, the amount of each periodic payment, etc. | A consumer has the right to cancel a future performance contract no later than one year after the date the consumer receives a copy of the contract if the contract does not contain the information required by the ''Business Practices and Consumer Protection Act'', such as the supply date, the amount of each periodic payment, etc. | ||
A consumer may cancel a continuing service contract no later than 10 days after receiving a copy of the contract, or at any time if there has been a material change in the circumstances of the consumer or the supplier. Examples of material changes in the circumstances of the consumer provided in | A consumer may cancel a continuing service contract no later than 10 days after receiving a copy of the contract, or at any time if there has been a material change in the circumstances of the consumer or the supplier. Examples of material changes in the circumstances of the consumer provided in [https://www.canlii.org/en/bc/laws/stat/sbc-2004-c-2/latest/sbc-2004-c-2.html#sec25_smooth section 25(3)] of the Act are the death, disability or relocation of the consumer. Examples of material changes in the circumstances of the supplier provided in [https://www.canlii.org/en/bc/laws/stat/sbc-2004-c-2/latest/sbc-2004-c-2.html#sec25_smooth section 25(4)] are failure to complete the services within the time specified in the contract, unavailability of the services due to discontinuance or substantial change in operation of the supplier, and relocation of the supplier by more than 30 kilometres. | ||
====Notice of cancellation==== | ====Notice of cancellation==== | ||
Under | Under [https://www.canlii.org/en/bc/laws/stat/sbc-2004-c-2/latest/sbc-2004-c-2.html#sec54_smooth section 54] of the ''Business Practices and Consumer Protection Act'', a consumer (or supplier) may give a notice of cancellation by any means that permits a person to prove that they cancelled the contract on a specific date, including delivering the notice in person, or by registered mail, email or fax to the appropriate address or number in the contract. | ||
If the notice of cancellation is given other than by personal delivery, it is deemed to have been given at the time it was sent. | If the notice of cancellation is given other than by personal delivery, it is deemed to have been given at the time it was sent. | ||
