Lost at POPLA

bazster

1gring wrote: »

Ok I'm a bit confused with this one. What contract do I cancel cause I don't remember entering one with them. Also if I apply to cancel doesn't that mean I was on one? Can't get divorced if you're not married:) , it's just a thought maybe I am missing something

I agree. This attempt to use the successor to the Distance Selling Regulations is highly dubious in my opinion, and far from "it can't do any harm" I'd have thought that, in the vanishingly small likelihood of this landing in a court of law, it could annoy a judge intensely.

The signage at JLA is rubbish and can't possibly have bound you into a contract in the first place so I agree with you, there's no contract to cancel (plus all the other reasons why there was no contract anyway).

salmosalaris

As I posted earlier in the thread I agree with the post above . There is also a cardinal rule IMO in defending yourself and that is not to use anything you don't fully understand or can explain or it potentially can do harm .
My opinion on the distance selling regs is that they are not relevant in these cases although others disagree with me .

nigelbb

bod1467 wrote: »

(Signs means this is a distant contract - there is no face-to-face negotiation to allow a "meeting of minds" - so there are specific rules companies must follow when contracting with consumers).

This means nothing of the sort. A Distance Contract is one entered into remotely e.g. on a website, by telephone or by mail order. A sign where the service is offered is not distance selling any more than a price ticket on an item in a shop window (which also involves no face-to-face negotiation) is distance selling.

1gring

Ok guys this is the contract they are talking about, on the PCN from VCS it says this ' The terms and conditions to which the Driver agrees to be contractually bound upon entering the site are clearly placed at the entrance to the controlled zone......bla bla bla ' so they are saying if you read it you entered into a contract. ...... But I never read them anyway
This is what its all about. ?... What do you guys think?

1gring

1gring wrote: »

Ok guys this is the contract they are talking about, on the PCN from VCS it says this ' The terms and conditions to which the Driver agrees to be contractually bound upon entering the site are clearly placed at the entrance to the controlled zone......bla bla bla ' so they are saying if you read it you entered into a contract. ...... But I never read them anyway
This is what its all about. ?... What do you guys think?

Note where it says 'Driver agrees '

bazster

1gring wrote: »

Ok guys this is the contract they are talking about, on the PCN from VCS it says this ' The terms and conditions to which the Driver agrees to be contractually bound upon entering the site are clearly placed at the entrance to the controlled zone......bla bla bla ' so they are saying if you read it you entered into a contract. ...... But I never read them anyway
This is what its all about. ?... What do you guys think?

You can't read them from a moving vehicle. The only way to read them would be to stop...

bazster

nigelbb wrote: »

This means nothing of the sort. A Distance Contract is one entered into remotely e.g. on a website, by telephone or by mail order. A sign where the service is offered is not distance selling any more than a price ticket on an item in a shop window (which also involves no face-to-face negotiation) is distance selling.

The difference being that if you read a price ticket in a window and then enter the shop you haven't entered into a contract, whereas VCS' argument would be that by driving past the sign onto the airport roads you have entered into a contract - and, to boot, a contract concluded where the trader was not present.

I can see how one could interpret the new regs in this way, I'm just far from convinced that one should so interpret them, and I wouldn't fancy being the first person to attempt to persuade a judge!

“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

Well there's no doubt that the alleged contract is concluded between a trader and a consumer. I would also suggest that the permanent road and signage makes it an "organised...service provision scheme". Furthermore, there is no doubt that the trader is not physically present.

It hinges, then, on whether the signage purporting to make the offer, and the act of accepting by driving past the signage, are "means of distance communication". Unfortunately the new regs don't define "distance communication"! The old regs defined "distance communication" thusly:

"any means which, without the simultaneous physical presence of the supplier and the consumer, may be used for the conclusion of a contract between those parties; and an indicative list of such means is contained in Schedule 1".

Which might well cover it. The indicative list in Schedule 1 is thus:

1. Unaddressed printed matter.
2. Addressed printed matter.
3. Letter.
4. Press advertising with order form.
5. Catalogue.
6. Telephone with human intervention.
7. Telephone without human intervention (automatic calling machine, audiotext).
8. Radio.
9. Videophone (telephone with screen).
10. Videotext (microcomputer and television screen) with keyboard or touch screen.
11. Electronic mail.
12. Facsimile machine (fax).
13. Television (teleshopping).

The question then arises as to whether there is a right to cancel, given that, by default, the cancellation right exists for only 14 days. Coupon-Mad argues, plausibly, that the trader must give the consumer information on the right to cancel before the consumer can be bound by the supposed contract, and where it is not given the right to cancel extends for up to a year (or for 14 days after whatever date the information is given). Incidentally, failing to give the information required under the regs is an offence.

Intriguingly, where the alleged contract is for services, the trader may not supply those services until the expiry of the cancellation period, unless requested to do so by the consumer in a durable medium. Quite how a PPC deals with that I do not know since, if the service offered is the use of airport roads, the supply of that service is clearly going to happen immediately and without a request from the consumer in a durable medium.


All in all I can see how you could interpret this in the way being suggested here, but I for one wouldn't fancy trying to make sense of it in a court. By implication it would make any and every supposed consumer contract, for any service, capable of being cancelled if the contract were allegedly offered by means of signage, and accepted by performance, without the presence of the trader.

Coupon-mad

1gring wrote: »

Ok I'm a bit confused with this one. What contract do I cancel cause I don't remember entering one with them. Also if I apply to cancel doesn't that mean I was in one? Can't get divorced if you're not married:) , it's just a thought maybe I am missing something

You haven't read the links talking about it then. I agree with you and in the Notice you can say the contract is denied as well, if you want. Stop overthinking it. Sending a Notice of Cancellation is a right you have (and does NOT imply there ever was a valid contract) so don't throw that away as well as the POPLA appeal.

Like Bod1467 said:

bod1467 wrote: »

So you're writing to specifically reject and cancel any such contract. Don't worry too much about it ... the advice relates to the new Consumer Contracts Regulations that came into force in June this year; as the PPC didn't advise any cancellation terms on their signs then the T&Cs of the "contract" were not properly given, therefore the consumer can opt to cancel any implied contract.

(Signs means this is a distant contract - there is no face-to-face negotiation to allow a "meeting of minds" - so there are specific rules companies must follow when contracting with consumers).

salmosalaris wrote: »

My opinion on the distance selling regs is that they are not relevant in these cases although others disagree with me .

That used to be true but this isn't the 'Distance Selling Regs' any more - AIUI they have been incorporated in the new regs which do NOT just apply to telephone sales calls etc. any more:

http://ec.europa.eu/justice/consumer-marketing/rights-contracts/distance/index_en.htm

The Directive on the protection of consumers in respect of distance contracts has been repealed on the 13 June 2014, with the entry into force of the Directive on Consumer Rights , which incorporates the provisions of the Distance Selling Directive.


I know that this was discussed with some regulars but the replies saying 'distance selling regs don't apply' have only come from people who don't seem to have realised they have now GONE and been replaced with a new version which includes all consumer contracts (unless specifically on the exempt list).

nigelbb wrote: »

This means nothing of the sort. A Distance Contract is one entered into remotely e.g. on a website, by telephone or by mail order. A sign where the service is offered is not distance selling any more than a price ticket on an item in a shop window (which also involves no face-to-face negotiation) is distance selling.

I beg to disagree - the old DS Regs used to have an indicative list of what made up 'distance means of communication' but that has now gone completely. It was only ever 'indicative' (in fact it used to include 'unaddressed printed matter' which arguably could include a sign) and now the list doesn't exist, deliberately so in a publication I read from Which? about Consumer Contracts and the recent drive by the EU to simplify and clarify consumer rights across the board.

IMHO no-one can now say 'A Distance Contract is one entered into remotely e.g. on a website, by telephone or by mail order' until it has been tested in a Court of law - not now that the Regs have had a shake up and apply to all consumer contracts. Things have changed a lot in my view - the EU has issued a Directive on Consumer Rights and changed a lot of the old stuff which was confusing & ambiguous. Read the new regs and the Guidance and EU view:

http://www.legislation.gov.uk/uksi/2013/3134/schedule/2/made

http://ec.europa.eu/justice/consumer-marketing/rights-contracts/directive/index_en.htm

http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/310044/bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf

http://ec.europa.eu/consumers/archive/rights/docs/proposal_annex_en.pdf

I know some regulars think this has no 'legs'. Benefit Master sees it my way and I have seen nothing to tell me that this idea has no legs.

bazster

Coupon-mad wrote: »

That used to be true but this isn't the 'Distance Selling Regs' any more - AIUI they have been incorporated in the new regs which do NOT just apply to telephone sales calls etc. any more. I know that this was discussed with some regulars but the replies saying 'distance selling regs don't apply' have only come from people who don't seem to have realised they have now GONE and been replaced with a new version which includes all consumer contracts (unless specifically on the exempt list).

You are not reading the new regs carefully enough. Some aspects apply to all consumer contracts, but the cancellation right applies only to distance or off-premises contracts.

A PPC "contract" is certainly not an off-premises contract, and I will not be convinced it's a distance contract until a court says so.

Just because you want it to be so don't make it so.

1gring

I'm well confused!! But I do appreciate everyone trying to help