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Unenforceable v Not Bound

Unenforceable v Not Bound

Postby against-big-guns » Fri Jan 08, 2016 1:36 pm

Consumer protection. Is there any real difference between the following :

(6) A contract to which these Regulations apply shall not be enforceable against the consumer
unless the trader has given the consumer a notice of the right to cancel and the information
required in accordance with this regulation.

(1) Before the consumer is bound by an off-premises contract, the trader--
(a) must give the consumer the information listed in Schedule 2 in a clear and comprehensible man-
ner, and
(b) if a right to cancel exists, must give the consumer a cancellation form as set out in part B of
Schedule 3.

IMHO the first one means that a contract comes into existence but a trader cannot enforce it against a consumer, but in the second it is arguable that no contract can come into existence until the trader gives the information i.e. right to cancel notice etc.,
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Re: Unenforceable v Not Bound

Postby atticus » Fri Jan 08, 2016 1:45 pm

I can see no real difference*. Nothing in the second says that the contract does not exist; it says that the consumer is not bound by it unless the stated conditions are met.

* there probably is a distinction between a contract being unenforceable against the other party and the other party not being bound by it, but in the real world the result is the same.
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Re: Unenforceable v Not Bound

Postby against-big-guns » Fri Jan 08, 2016 2:30 pm

What I was looking at was the subtle difference brought in by the word "before". In the old regs a contract could exist but it could simply not be enforced by the trader. The new regs state that the consumer is not even bound by a contract UNTIL the trader supplies the relevant information, i.e. a condition precedent to a contract( without which there is no contract), rather than a contract existing before the trader supplies the information.

I can only propose that parliament has deliberately changed what used to be simple words into more a more complex situation, just like the very complex rules which now apply to the length of time given for withdrawal/cancellation by the consumer - up to 12 months.
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Re: Unenforceable v Not Bound

Postby dls » Sat Jan 09, 2016 5:25 am

There have been cases where a contract was found to exist but be unenforceable.

Here the distinction - if any - may be between whether the contract is enforceable against only one of the two parties/
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Re: Unenforceable v Not Bound

Postby theycantdothat » Sat Jan 09, 2016 12:39 pm

Like Atticus I can see no distinction between the two. "Unenforceable" and "not bound" are the same thing. The contract exists but cannot be enforced by proceedings. However, if the parties proceed they cannot later argue that there was no contract. "Unenforceable" is to be be distinguished from "voidable" where one party has the option of affirming or cancelling the contract.
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