Contractual payment charge

salmosalaris wrote: »

Limits of application: general

6. (1) These Regulations do not apply to a contract, to the extent that it is—

(c)for the creation of immovable property or of rights in immovable property;

Discuss

But parking contracts do not create 'property rights' - and we know the Regs do cover parking spaces.

http://www.warnergoodman.co.uk/news/2014/07/new-consumer-contract-regulations-what-are-the-implications-for-business/

Not all trader to consumer contracts are caught by the new regulations with the following contracts being excluded: gambling, financial services, rental of accommodation for residential purposes, construction of new buildings or construction of substantially new buildings by the conversion of existing buildings, household goods delivered by rounds men, package travel, timeshares and creation of immovable property or of rights in immovable property. All other trader-consumer contracts will be caught by the new regulations.

Interesting to see that this rumbled on yesterday. I would have to say that in isolation, the most recent quote doesn't change much - what would/would not constitute express consent? It would be unrealistic to expect consumers to request a parking space in writing, so allowance must be made for express consent to take other forms. But I digress...

After reading through the EU Directive I can see two issues with "withdrawal".

Article 3, Scope:

3. This Directive shall not apply to contracts:
　
l) concluded by means of automatic vending machines or automated commercial premises;

A P&D machine or a pay-on-exit machine is an automatic vending machine - it just sells a service instead of a physical product. The Directive does not differentiate. You could argue that a car park is an automated commercial premises, particularly if it relies on ANPR technology.

Article 14, Obligations of the consumer in the event of withdrawal:

　
3. Where a consumer exercises the right of withdrawal after having made a request in accordance with Article 7(3) or Article 8(8), the consumer shall pay to the trader an amount which is in proportion to what has been provided until the time the consumer has informed the trader of the exercise of the right of withdrawal, in comparison with the full coverage of the contract. The proportionate amount to be paid by the consumer to the trader shall be calculated on the basis of the total price agreed in the contract. If the total price is excessive, the proportionate amount shall be calculated on the basis of the market value of what has been provided.

7(3) is unlikely to apply, but 8(8) arguably does, in that it requires that the consumer expressly requests the service. In any case, if you're trying to invoke cancellation, it is implicit that 7(3) or 8(8) do apply.

Onto the detail of 14(3); 100% of the 'service' has been provided. If the PPC is claiming a contractual charge, then the consumer is required to pay 100% of that charge (ignoring debates about whether the "price is excessive" - it is likely to have been on the sign, after all). This goes back to the 'common sense' argument; it is wholly unfair on a service provider if consumers are able to relieve themselves of any contractual duty simply by cancelling the contract at a later date. I do not believe for one second that it was within the intent of the regulations, and 14(3) puts it in black and white. If you cancelled a mobile phone contract you would be liable for your phone usage and line rental up to the point of cancellation.

By extension of 14(3), the regulation accepts that the contract was once in force and cancellation is not retrospective. You can't send a cancellation and pretend that the contract never existed - it existed until you sent your cancellation, at least for the purposes of this clause (and I see nothing elsewhere in the Directive that would lead me to think otherwise). Any suggestion that you can avoid breach of contract charges simply by cancelling is therefore also incorrect, IMO - it is still possible to breach the terms of a contract, even if you later cancel it.

I have to say, a read of the European regulations and of the UK government guidance only reinforces my view that any attempt to apply this to car parking is a subversion of its intent.

The reference to unpaid parking charges relates solely to CPUTR in that document, it is on page 11. The section related to Consumer Contracts, which begins on page 13, does not mention parking. (EDIT: and this is also a UK document, not an EU one, so you can't infer that the EU had any particular intent)

I was beginning to wonder where everyone had got the idea that the Consumer Contracts legislation was in any way relevant to car parking, having been unable to find any reference in the European Directive. Clearly someone just got the wrong end of the stick.

My quotes from the European Directive are unambiguous - the Consumer Contracts legislation absolutely cannot be applied as we are advising in the newbies thread. Please, can we now stop advocating this?


As an aside, the example on page 11 of the document you've linked to shows that it should be possible to use CPUTR 2014 to obtain compensation for "inconvenience and stress" if you're a victim of sharp practice - I'll read the full legislation at some point. It does however resolve the discussions raised on another thread:
http://forums.moneysavingexpert.com/showthread.php?t=5127424


So, no need to try and con the PPC into a contract, no need to prove a financial loss, just throw CPUTR at them - I do hope the BPA and IAS are aware :rotfl:

C-m, let me start by saying that I respect the advice that you give so freely on here. None of my comments are intended to be personal, so I apologise in advance if they come across that way. I'm simply trying to point out flaws in the use of this legislation as I see them, and none of the counter-arguments have come close to persuading me that they have merit.

Coupon-mad wrote: »

No I didn't - ALL consumer contracts are covered, which are not listed as exempt. They would not necessarily mention parking, they don't have to, any more than they have to mention any other type of contract, because they are all covered.

My comment about getting the wrong end of the stick relates to your last post, where you state that this document (https://www.gov.uk/government/upload...-practices.pdf) shows that the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations (and the right to withdraw) relates to parking. That document does not - it mentions private parking only in relation to the Amended CPUTR.

Even if the Consumer Rights Directive (and the UK's derived legislation) was relevant, I point you again to the sections I posted, specifically 14(3) - the effect of withdrawal is not to allow a consumer to pull out of a contract free from any obligations, it is to cancel that contract at the point in time that the cancellation made. Any charges that were due under the contract remain due, pro-rata to the point at which the cancellation was made. Sending a cancellation simply has no value.
You didn't respond to this at all, and I realised that you may believe extended cancellation rights apply because the right of withdrawal hasn't been communicated. In light of this, Article 5 states that:

　
3. Member States shall not be required to apply paragraph 1 to contracts which involve day-to-day transactions and which are performed immediately at the time of their conclusion.

For clarity, "paragraph 1" is the paragraph requiring the communication of withdrawal rights. Parking your car is a day-to-day transaction which is performed immediately at the time of the contract's conclusion, so no information on withdrawal rights needs to be given.

I acknowledge that this applies to contracts that are not distance/off-premises, but as I said before a car park falls within a reasonable definition of an "automated commercial premises". I see that you disagree. The first definition of "automation" from dictionary.com is: "the technique, method, or system of operating or controlling a process by highly automatic means, as by electronic devices, reducing human intervention to a minimum." Then, from the UK legislation:

"business premises” in relation to a trader means—
(a) any immovable retail premises where the activity of the trader is carried out on a permanent basis

So it is automated, and it is a business premises. It would be helpful if you could explain why you disagree?

Coupon-mad wrote: »

This particular legislation forms part of the UK regs flowing from the Consumer Rights Directive and parking is covered. It says so in the EU Guidance Guidance:
''For example, renting a parking space...is subject to the Directive. ''

"Renting a parking space" is not the same as "using a publically accessible car park" - renting and 'having use of' are two very different things. In the guidance that you cite, the paragraph leading up to the example you've quoted discusses "real estate agents" and "rental of accommodation for non-residential purposes", which gives an idea of the true intention of the Directive.
The UK legislation, and its guidance, do not contain any reference to parking. Given that PPCs are a uniquely British infestation, why have you inferred that a Europe-wide Directive was aimed at the private parking industry?

Coupon-mad wrote: »

What makes you say that? It doesn't, because the EU Guidance does state that rental of a parking space is covered.

Again, my comment about reference to CPUTR rather than CC (Information, Cancellation and Additional Charges) Regulations relates to the link that you provided previously, which implied that references to parking related to the latter rather than the former.

Coupon-mad wrote: »

... I agree that P&D machine car parks are probably exempt, never said they are not, but as most fake PCNs come from free car parks it's in the NEWBIES thread first appeal anyway.

The Newbies guide currently says - in big, bold letters - that the letter including cancellation of contract "suits all cases". I'd suggest this needs to be updated if it doesn't suit P&D/pay car parks.

Coupon-mad wrote: »

But IMHO car parks with an ANPR camera would be pretty hard to argue to be 'automated commercial premises'.

I've covered this already and it's actually incredibly easy to argue for that definition, even if there isn't an ANPR camera. It doesn't require the removal of human intervention, just that intervention is minimised.

I know there is a difference of opinion on this matter but my opinion can be summarised as follows . The "parking contract " could either be classed as on-premises or distance .
1. If classed as on-premises and the definition is loose enough to allow for this then it is exempt from the cancellation regs .
2. If it is classed as a distance contract I feel that it is exempt from the regs as :
a. Cancellation would be after completion of the contract
b. Request could quite reasonably be judged as the act of parking - we are all used to the concept that car park t&c are conveyed by signage , although I concede there is some vulnerability here as "express request " would be oral or written .
c. The cancellation information required for a contract that is completed immediately only needs be "if you don't wish to be bound by this contract don't park here "
d. There is the possibility this could be classed as a day to day transaction.

The argument re sneaky contracts is a different argument altogether and would come down to ambiguous , inaccurate or inadequate signage but that is a different beast .

The only way to find out though is to stick it in front of a judge but as I've said before the defendant had better be able to argue the point proficiently or it could end up being counter-productive