commercial law Acts

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Consumer Rights Act 2015

The Consumer Rights Act 2015 (the “CRA 2015”) is generally regarded as a significant piece of legislation in the area of consumer rights. The CRA 2015 received Royal Assent on 26 March 2015 and came into force on 1 October 2015.

The state of the law on consumer rights prior to the implementation of the CRA 2015 has been described as “unnecessarily complex” and “fragmented”[1], having been developed in a piecemeal fashion over the years through the introduction of primary and secondary legislation (including the Supply of Goods (Implied Terms) Act 1973, the Unfair Contract Terms Act 1977 (“UCTA”), the Sale of Goods Act 1979, the Enterprise Act 2002 and the Sale and Supply of Goods to Consumers Regulations 2002), as well as through case law (for example, the landmark case of Donoghue v Stevenson[2]). Motivated in part by the “need to increase consumer confidence in…markets as a response to the economic downturn”[3], as well as the requirement to implement wider EU reform proposals (such as the EU Consumer Rights Directive[4]), the government embarked on extensive consultation on a Consumer Law Reform Programme, declaring as a matter of policy certain 'core consumer rights'[5] and introducing a package of reform measures which culminated in the implementation of the CRA 2015. The consultation process included the publication of a benchmarking study by the University of East Anglia in 2008[6] and various reports and recommendations by the Law Commission and Scottish Law Commission[7].

The CRA 2015 has several key aims, the primary aim of which is to achieve “a simple, coherent framework of consumer legislation by consolidating and simplifying existing law”[8]. In addition, the CRA 2015 seeks to modernise the law to enable it to deal with developments in the digital landscape (such as online streaming) and to implement certain provisions of the EU Consumer Rights Directive (e.g. specifying the consumer’s cancellation rights for relevant contracts concluded off-premises or through distance trading).

The CRA 2015 applies to all contracts between traders (defined as a person acting for purposes relating to that person’s trade, business, craft or profession) and consumers (defined as an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession)[9], and is divided into three parts.

The provisions of Part 1 of the CRA 2015 deal with consumer contracts in respect of goods, digital content and services. The provisions in Chapter 2 of Part 1 deal with the supply of goods in consumer contracts, and mainly serve to restate and consolidate the existing law by imposing certain implied terms and minimum standards to be met by the goods sold to consumers. These include restating existing requirements for goods to be of satisfactory quality and fit for purpose[10]. The CRA 2015 also clarifies the protections available to consumers in respect of defective goods, dealing with the consumer’s right to replacements, refunds, price reductions and the right to reject goods[11].

More notably, Chapter 3 of Part 1 of the CRA 2015 introduces new consumer rights and remedies in respect of digital content. This is something that was seen as sorely needed because digital content did not fit squarely into the traditional categories of goods (as digital content is usually licensed and not sold) or services (where a mere requirement for digital content to be provided with reasonable skill and care does not go far enough to protect consumers in the event of faulty digital products)[12]. By introducing tailored quality rights in respect of digital content and remedies should these rights not be met (similar to those which apply to traditional goods and services), the CRA 2015 has ushered the law of consumer rights into the digital age. For digital content which does not meet the statutory standards, consumers have the right to require the trader to repair or replace the item within a reasonable time and a right to a price reduction and refund[13]. In contrast with goods remedies however, consumers do not have an express right to reject digital content which is not in tangible form because “digital content cannot be returned in any meaningful sense”[14].

Chapter 4 of Part 1 of the CRA 2015 deals with terms implied into contracts relating to the supply of services to consumers, the most significant change of which provides that information provided to the consumer by or on behalf of the trader is incorporated as a term of the contract if the consumer takes it into account in deciding whether to enter into the contract or makes a decision about the service after entering into the contract[15].

Part 2 of the CRA 2015 consolidates the provisions of UCTA and the Unfair Terms in Consumer Contracts Regulations 1999 (“UTCCR”), into one place, “removing anomalies and overlapping provisions in relation to consumer contracts”[16]. In particular, these provisions apply a ‘fairness test’ to consumer contracts and notices, making it clear the circumstances when the price or subject matter of the contract is excluded from fairness considerations and emphasising the need for terms to be transparent and prominent in order to avoid being considered unfair[17]. The CRA 2015 also provides an indicative list of terms which may be regarded as unfair, similar to that previously contained in the UTCCR (the so-called ‘grey list’)[18].

Part 3 of the CRA 2015 deals with various miscellaneous and general provisions, the most of significant of which relate to (i) the consolidation of the investigatory powers of enforcers and regulators and the introduction of new powers for public enforcers to seek redress and remedies through the civil courts for breaches of consumer law[19], and (ii) reforming the rules relating to the private enforcement of competition law by, amongst others, expanding the jurisdiction of the Competition Appeal Tribunal, making it easier for consumers to challenge anti-competitive behavior and introducing a limited opt-out collective actions regime[20].

The implementation of the CRA 2015 heralds a new legal era for consumers, and goes a long way in addressing the perceived shortcomings in the law on consumer rights, although it remains to be seen if further reform is required. Whilst there is no doubt that the changes implemented by the CRA 2015 have made access to remedies easier and more understandable by both the consumer and the trader, the impact of these changes on businesses is yet to be fully appreciated, as they will now need to comply with two distinct regimes – one which relates to “businesses” and the other which relates to “consumers”.

REFERENCES:

1. Bray, O., and Kerry, B., ‘Digital content under the Consumer Rights Act 2015’ (2015) Entertainment Law Review, 26(8), 271-273

2. Cartlidge, H. and Davies, L., ‘UK Consumer Rights Act 2015: reforms to the private enforcement of competition law’ (2015) Compliance and Risk, 4(6),

3. ‘Civil Practice Bulletin’ (Westlaw 2015), 125, 1-2, accessed on 11 February 2016

4. Department for Business, Innovation and Skills, ‘Explanatory Notes to the Consumer Rights Act 2015’

5. Department of Business, Innovation and Skills, ‘Government Response to Consultations on Misleading and Aggressive Practices and the European Consumer Rights Directive’, August 2013

6. England, E., ‘Consumer protection (England and Wales):overview’ (Westlaw Insight, 14 November 2013), accessed on 11 February 2016

7. ’Enforcement of Consumer Rights and Protections’ (LNUK 2015), Chapter 3, accessed 11 February 2016

8. Law Commission and Scottish Law Commission, ‘Unfair Terms in Contracts‘ (Law Com No 292 / Scot Law Com No 199, 2005)

9. Law Commission and Scottish Law Commission, ‘Consumer Remedies for Faulty Goods (Law Com No 317 / Scot Law Com No 216, 2009)

10. Law Commission and Scottish Law Commission, ‘Consumer Redress for Misleading and Aggressive Practices’ (Law Com No 332/ Scot Law Com No 226, March 2012)

11. O’Brien, E., ‘The UK Consumer Rights Act 2015: unfair contract terms considered’ (2015) Compliance and Risk 4(6), 12-14

12. University of East Anglia 'Benchmarking the performance of the UK framework supporting consumer empowerment through comparison against relevant international comparator countries' for BERR 2008

LEGISLATION CITED:

1. Consumer Rights Act 2015, c. 15

2. Directive 2011/83/EU of the European Parliament and of the Council on Consumer Rights

3. Enterprise Act 2002, c. 40

4. Sale and Supply of Goods to Consumers Regulations 2002, SI 2002/3045

5. Sale of Goods Act 1979, c. 54

6. Supply of Goods (Implied Terms) Act 1973, c. 13

7. Unfair Contract Terms Act 1977, c. 50

8. Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083

CASES CITED:

1. Donoghue v Stevenson [1932] AC 562


[1] Civil Practice Bulletin (Westlaw 2015), 125, 1-2, at 1, accessed on 11 February 2016. See also Department for Business, Innovation and Skills, ‘Explanatory Notes to the Consumer Rights Act 2015’, at paras 5-7

[2] Donoghue v Stevenson [1932] AC 562

[3]Enforcement of Consumer Rights and Protections’ (LNUK 2015), Chapter 3, accessed 11 February 2016

[4] Directive 2011/83/EU of the European Parliament and of the Council on Consumer Rights

[5] Department of Business, Innovation and Skills, ‘Government Response to Consultations on Misleading and Aggressive Practices and the European Consumer Rights Directive’, August 2013

[6] University of East Anglia 'Benchmarking the performance of the UK framework supporting consumer empowerment through comparison against relevant international comparator countries' for BERR 2008

[7] See Law Commission and Scottish Law Commission, ‘Unfair Terms in Contracts’ (Law Com No 292 / Scot Law Com No 199, 2005); Law Commission and Scottish Law Commission, ‘Consumer Remedies for Faulty Goods (Law Com No 317 / Scot Law Com No 216, 2009); Law Commission and Scottish Law Commission, ‘Consumer Redress for Misleading and Aggressive Practices’ (Law Com No 332/ Scot Law Com No 226, March 2012)

[8] Department for Business, Innovation and Skills, ‘Explanatory Notes to the Consumer Rights Act 2015’, at paras 12-14. See also Eve England, ‘Consumer protection (England and Wales):overview’ (Westlaw Insight, 14 November 2013), accessed on 11 February 2016

[9] Consumer Rights Act 2015, c. 15, section 2

[10] Consumer Rights Act 2015, c. 15, sections 9-18

[11] Consumer Rights Act 2015, c. 15, sections 19-24

[12] Oliver Bray and Ben Kerry, ‘Digital content under the Consumer Rights Act 2015’ (2015) Entertainment Law Review, 26(8), 271-273 at 271

[13] Consumer Rights Act 2015, c. 15, sections 42-45

[14] Department for Business, Innovation and Skills, ‘Explanatory Notes to the Consumer Rights Act 2015’, at para 205

[15] Eimear O’Brien, ‘The UK Consumer Rights Act 2015: unfair contract terms considered’ (2015) Compliance and Risk 4(6), 12-14, at 14. See Consumer Rights Act 2015, c. 15, section 50.

[16] Department for Business, Innovation and Skills, ‘Explanatory Notes to the Consumer Rights Act 2015’, at para 22

[17] Consumer Rights Act 2015, c. 15, sections 62, 64 and 68

[18] Consumer Rights Act 2015, c. 15, Schedule 2

[19] Consumer Rights Act 2015, c. 15, sections 77-80 and Schedules 5-7

[20] Howard Cartlidge and Lucy Davies, ‘UK Consumer Rights Act 2015: reforms to the private enforcement of competition law’ (2015) Compliance and Risk, 4(6), 2-5 at 2. See also Consumer Rights Act 2015, c. 15, sections 81-82 and Schedule 8