Direct Sales, Future Performance, and Time Share Contracts (11:V): Difference between revisions

When a consumer is approached by a salesperson, instead of making a conscious decision to seek out a product or service, they may be taken unaware and can be vulnerable to being taken advantage of. The ''BPCPA'' recognizes this risk by imposing disclosure requirements and allowing a consumer to cancel the contract in ways the common law does not permit.

A '''direct sales contract''' is defined in s 17 as:  

...a contract between a supplier and a consumer for the supply of goods or services that is entered into in person at a place other than the supplier's permanent place of business, but does '''not''' include any of the following:

* A funeral contract, interment right contract or preneed cemetery or funeral services contract (see ''Cremation, Interment and Funeral Services Act'' and its associated regulations which, like the ''BPCPA'' and its regulations, are enforced by Consumer Protection BC);

* A contract for which the total price payable by the consumer, not including the total cost of credit, is less than a prescribed amount of $50 (''Consumer Contracts Regulation'' B.C. Reg 272/2004 s 4 [''CCR'']); and

* A prepaid purchase card.

The ''BPCPA'' sets out a lengthy list of requirements under ss 19 and 20 for the content of direct sales contracts, such as the name, address, and telephone number of the seller, the name (in a readable form) of the individual who signs the contract on behalf of the supplier, a detailed description of the goods or services to identify them with certainty, the price, and a detailed statement of the terms of payment. When credit is extended (meaning any sort of arrangement where the individual/buyer can pay at a later date), there also needs to be a description of the subject matter of any security interest (such as collateral that the seller may hold in the buyer’s property). This is '''not''' an exhaustive list; please consult the ''BPCPA''.  

* (a) The purchaser may cancel the contract within '''10 days''' after receiving a copy of the contract. The purchaser need not offer explanations for their decision. The vendor then has 15 days after the date of cancellation to refund all money without deduction;

* (b) If a delivery date is specified in the contract and not all of the goods/services are delivered/performed within 30 days of this date, the purchaser may cancel the contract within one year after the date a copy of the contract was received, provided that the purchaser has not accepted or used the goods/services; and

* (c) If the contract does not contain information required under s 19 and 20(1) of the Act, the buyer may cancel within one year of the date of the contract.  

A direct sale is unenforceable by the seller if the buyer is required to make a down payment in excess of a prescribed amount (''BPCPA'' s 20(3)(b)). In the ''CCR'', s 4(2) sets the amount of down payment prescribed under s 20(3)(b) as the lesser of $100 or 10% of the total price.  

The ''BPCPA'' does not make oral executory contracts unenforceable. However, s 20(3) requires that the seller gives a written copy of the contract to the buyer at the time of signing. Otherwise, the contract is not binding on the buyer.

Under s 54, the ''BPCPA'' requires that the buyer provide notice of cancellation to the seller and declares that it may be delivered by any method that permits the cancelling party to produce evidence that the contract was cancelled. Notice by registered mail, electronic mail, personal delivery, and fax are explicitly permitted. Nowhere does the ''BPCPA'' explicitly state that a notice of cancellation shall be in writing, but a buyer should be cautious and deliver '''written notice'''. The section explicitly permits that the notice can be given to the seller directly, or to the postal, fax, or electronic mail address of the seller shown in the contract. When a buyer rescinds a contract under s 21, that section also provides that the goods may be retained until all of the money paid is refunded.  

In [https://www.canlii.org/en/bc/bcca/doc/1991/1991canlii1408/1991canlii1408.html?autocompleteStr=Woodward%20v%20International%20&autocompletePos=1 ''Woodward v International Exteriors (British Columbia) Ltd'', (1991), 53 BCLR (2d) 397, 1 BLR 254 (CA)] at para 10, verbal notice of termination of an agreement was sufficient for the consumer to terminate this form of contract. Note that verbal notice may not be sufficient in all instances and <u>written notice remains advisable</u>.