The ContractStore Team
wishes you a
Peaceful and Prosperous New Year
The ContractStore Team
wishes you a
Peaceful and Prosperous New Year
Until now, self-builders in the UK have faced the risk of an expensive levy payable to the local authority as a contribution to the local community, in return for getting planning permission. This levy has now been abolished for people building their own homes and they will now be exempt from these payments to local authorities, the Communities Secretary Eric Pickles announced recently. The exemption comes into force immediately and could affect hundreds of self builders currently going through the planning process.
Eric Pickles said: “This will also be a massive boost to the self build and custom build sector. Overnight in many parts of England, it will be cheaper to build an extension, a family annex or just build your own home.”
Section 106 Agreements are designed to provide financial benefits for the local community from the granting of planning permission and have traditionally been used to extract incentives from developers. They may take the form of new playgrounds, road crossings and even schools, depending on the size of the development. In recent years, however, NaCSBA reports that many one-off self-builders have found that local authorities are demanding a payment under a 106 agreement before granting planning approval — often in the £1,000s. In one case a self builder was charged £140,000 (in Dorset) to build their own home. The call to exempt self builders from Section 106 campaigned for jointly by NaCSBA and Homebuilding & Renovating.
ContractStore has contract templates for selfbuilders available for downloading at this link http://www.contractstore.com/homebuilder including free guidance.
ContractStore is delighted to announce a partnering arrangement with Artquest. This is mainly intended to help artists who need contract documents to support them in their work.
To mark the occasion, together we have developed a Consignment Agreement for use by artists when sending their work to a gallery for exhibition and sale.
The Artist Consignment Agreement (document A246 in the ContractStore catalogue), is available as a free download for a limited period.
Also, Artquest subscribers can benefit from a 15% discount on all ContractStore templates. These include a Design Agreement, a Model Release Form, and Art Gallery – Artist Agreement among the 250 contract templates for sale from our website.
Christmas is the season of goodwill. But Christmas parties have been known to result in disputes over sexual harassment and in today’s multicultural society there is even a possible risk of complaints about religious discrimination according to our employment lawyer, Philippa Wood.
So, why not send a few minutes reading her article on whether celebrating Christmas could present a risk for an employer.
You can find the article here: http://www.keystonelaw.co.uk/other/keynotes/2014/12/does-celebrating-xmas-open-yourself-up-to-religious-discrimination-claims/
It is good to see a positive report on the benefits of online services such as those offered by ContractStore. The report entitled “2020 Legal Services – How Regulators Should Prepare for the Future” has reviewed the various offerings online that enable consumers (and businesses) to benefit from the new technology and to obtain a cost-effective solution to some of their problems. The Legal Services Consumer Panel that issued the report advises the Legal Services Board, the ‘super-regulator’ of legal services in England.
According to the report, their survey data shows strong consumer demand for online services: 47% of consumers polled said online delivery is important to them.
As technology makes legal services simpler to use, involve less effort and cheaper to buy, more people are likely to carry out the sorts of tasks – like writing a will or arranging a power of attorney – which currently they either prefer to put off or cannot afford to do. The various online services offer many benefits. Among other things, “they may be less intimidating, cheaper, quicker and more convenient.’”
‘Self-lawyering’ (sic) is expected to increase as consumers seek alternatives to lawyers through technology enabled DIY solutions. This will enable some consumers to complete common legal tasks without the need to engage a lawyer, or with minimal supervision by a lawyer.
As the report says, historically, lawyers have been a conservative profession which has successfully resisted change. It is therefore encouraging to see the Legal Services panel acknowledging the beneficial impact for users of the new marketplace when the report says that “in overall terms, there would seem good grounds for being optimistic about the future. Market liberalisation, technology and other forces should produce innovative and cheaper services that can benefit all consumers and widen access to groups currently excluded from the market.”
However they do have concerns at the unregulated nature of the online legal market. So they want to encourage and facilitate initiatives to raise standards and extend access to redress in unregulated markets while “continuing to press for modernisation of the wider regulatory framework in the longer term.”
There is something of anomaly in the regulatory framework at present: on the one hand, to practise as a solicitor you first have to train, qualify, be registered with the Solicitors Regulatory Authority and comply with the SRA Code of Conduct and Accounts rules. But the ‘regulated activities’ which only solicitors can perform are very few – essentially court litigation, handling probate and some property transactions. As a result, the internet has enabled the proliferation of a wide range of legal or quasi-legal services which are not subject to any professional control and can be provided by people without any training in the law.
At ContractStore, we have taken steps to ensure that our services meet high professional standards. All our documents are prepared by qualified, experienced lawyers and we are a founder member of APOD, the Association of Publishers of Online Legal Documents which itself has a Code of Practice that members have to sign up to.
The full report can be found here - http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2020consumerchallenge.pdf
A £300,000 penalty issued by the Information Commissioner (ICO) against a Mr Niebel for sending unwanted text messages ‘on an industrial scale’ has been cancelled on appeal.
Hundreds of thousands of messages were sent from hundreds of unregistered sim cards seeking out potential claims for mis-selling of PPI loans or for accidents. And there was no evidence to show that he made any effort to make sure that the recipients consented or that he retained any record of consents. He did not even bother to register with the ICO under the Data Protection Act (DPA) as a controller of data.
Under the regulations in place since 26 May 2011 the ICO can impose fines of up to £500,000. But the regulations say the contravention must be serious. It must also be “of a kind likely to cause substantial damage or substantial distress”.
The fine imposed by the ICO covered messages sent before and after these new regulations came into effect. In fact only 286 of the messages were sent after 26 May, a tiny proportion of the total.
In his judgement, Judge NJ Warren said that the effect of the contravention was likely to be widespread irritation but not widespread distress. “Given the scale of the contravention, there is the possibility of some distress in very unusual circumstances but we cannot construct a logical likelihood of substantial distress as a result of the contravention. We conclude that the contravention is not of a kind likely to cause substantial distress. “ So he cancelled the penalty notice.
Even if it does not cause distress, spamming is still illegal and you need to be sure to obey the rules if you want to send out marketing material. Direct email marketing to consumers is acceptable if the sender has “obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient”, where the marketing is for “similar products and services only” and providing the recipient can easily unsubscribe so as to refuse the use of their contact details for that marketing in future.
New regulations concerning the sale of goods and services to consumers come into effect in June. The great majority of businesses selling goods or services online as well as door step and other “off-premises” sales will be affected.
The Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013 come into effect on 13 June 2014. They replace the existing the Distance Selling Regulations and the Doorstep Regulations.
Although many of the existing regulations will continue, they have been updated in various ways and there are a number of changes that you will need to make to your terms and conditions.
So, be prepared to update your Terms of Business for online sales on your website as well as for off-premises sales. And remember, these Regulations apply to the sale of services as well as goods.
ContractStore’s Terms & Conditions for online sale of goods (document A179) have been updated and are available to buy and download from our website.
Here are some of the key points in the new Regulations:
Information Lots of information must be given by the trader to the consumer before the contract is made. This pre-contract information will be treated as information forming part of the contract. If this information is not provided, the consumer may not be bound by the contract.
Schedule 2 of the regulations details 24 separate bits of information to be provided. These include:
Making the Contract. In the case of online business, the information items in italics above are the minimum that the trader must provide ‘in a clear and prominent manner’ before the consumer places an order.
Also the website must have wording that ensures the consumer, when placing an order, explicitly acknowledges the obligation to pay for the goods or services being ordered.
Unless the trader complies with these requirements, the consumer is not bound by the contract..
Once an order is placed, the trader must confirm the contract within a reasonable time and before the delivery of goods or start of services. email confirmation is acceptable.
Sales by Phone. Anyone making a phone call to get a contract must at the beginning of the conversation identify the trader’s identity, the purpose of the call and the identity of any third party on whose behalf the call is being made.
Delivery. The contract will automatically contain an implied term requiring retailers to deliver goods and services without delay and in any event within 30 days from the contract date
Risk. Until goods come into the physical possession of the consumer, risk of loss or damage remains with the trader. This will not apply if the consumer arranges transportation with a carrier who has not been recommended by the trader.
Cancellation Rights. Consumers will have 14 days in which to cancel a contract. This period replaces the existing period of 7 working days. The 14 day period starts the day after the contract is made in the case of a service contract or contract for the supply of digital content online.
In the case of goods, the cancellation period ends at the end of 14 days after the day on which the last of the goods came into the physical possession of the consumer (or someone identified by him – e.g. the person to whom a gift is being delivered).
The Regulations contain a model cancellation form and consumers should be given the option to use this, but any clear statement of cancellation will be effective provided it is given within the 14 day period.
If the trader does not spell out the consumer’s cancellation rights, then the consumer has the right to cancel the contract at any time within 12 months. It is also an offence, punishable by a fine.
Refunds. If the consumer cancels the contract and returns the goods, the trader must make a full refund within 14 days. This includes the basic cost of delivery if the consumer paid for the goods to be delivered to him. Where there is no delivery of goods, the refund must be within 14 days after the trader is informed of the cancellation.
If the value of the goods has been reduced by the consumer’s handling, the trader can deduct an appropriate amount from the refund.
Return of Goods. The trader is responsible for collecting the goods if:
In other cases, the consumer is responsible for sending the goods back to the address specified by the trader. The consumer is responsible for the cost of returning goods unless either the trader has agreed to meet those costs or he failed to tell the consumer about the consumer bearing the cost in the information provided at the beginning.
Services in Cancellation Period. The trader must not start services within the cancellation period unless he is asked to by the consumer. If services are then performed in full, the consumer’s cancellation right is lost. If services are partly performed and the consumer cancels within the 14 day period, the trader is entitled to payment on a proportionate basis for those services.
Supply of Digital Content. Where there is a contract online for the supply of digital content, the trader should not supply the content before the end of the cancellation period unless the consumer has given express consent for early delivery and the consumer has acknowledged that the right to cancel the contract will not apply. So, if you are selling downloads of music or maps, you need wording to ensure that the consumer agree to waive his cancellation rights as he goes through the buying process on your website.
Helpline Charges. If it trader operates a helpline, this must not involve the consumer in phone charges above the basic rate. If it does, the trader is obliged to refund the extra cost to the consumer.
Excluded Contracts. These Regulations do not apply to certain contracts including: financial services and insurance; leases of property and contracts for the sale of land; contracts for construction of new buildings or conversion of existing buildings.
Exclusion of Cancellation Rights. The right to cancel a contract does not apply in some circumstances including:
For ContractStore’s template Terms of Business for the Sale of Goods Online click here
For more detailed information, the Regulations are available online and are quite easy to read. Also there is Guidance published by the Department of Business Innovation & Skills.
The case of Durkin v. DSG Retail that was decided in the Supreme Court last week has the elements of a David and Goliath battle – in this case a consumer winning against a bank.
In 1998 Mr Durkin bought a laptop computer from PC World in Aberdeen. He wanted an internal modem and made this clear to the salesman. He paid a £50 deposit and signed a credit agreement for the balance of £1449 with HFC Bank. When he got home he found that there was no internal modem so he returned the laptop to the shop the next day when he asked for the return of his deposit and cancellation of the credit agreement. The shop refused.
Because Mr Durkin did not pay any money to the credit company, HFC, and they refused to cancel their agreement, they issued a default notice and indicated to the credit reference agencies that Mr Durkin was in default. As a result, he found he could not get credit elsewhere. In 2004 he brought proceedings claiming £250,000 damages from HFC for negligence in claiming that he had defaulted on a contract which he was entitled to cancel. The court awarded him a total of nearly £120,000 which included £8000 for injury to his credit status and £102, 000 on the loss of a capital gain on a Spanish property on which he had been unable to pay a deposit because of his poor credit rating.
HFC won when they appealed against this decision in Scotland but on 25 March the Supreme Court in London unanimously held that Mr Durkin was entitled to rescind the credit agreement and validly did so. They made it clear that the purpose of a credit agreement of this type is to finance a transaction between the consumer and the supplier. Mr Durkin was entitled to cancel the purchase because the laptop was not what he required and in consequence he was excused from obligations under the credit agreement.
The original award of £8000 for damages to credit was upheld although Mr Durkin’s attempt to have the damages for loss of a capital gain on his Spanish property was not.
This case is an important one in linking the consumer’s rights under supply agreement with those under a related credit agreement.
For the full report http://www.supremecourt.uk/current-cases/case_2012_0135.html
The televised trial of Oscar Pistorius for the murder of his girlfriend Reeva Steenkamp in South Africa has attracted a lot of attention around the World.
For anyone who is interested in legal aspects, in particular the essential elements of the crime of murder, we have received a very clear summary from Walkers, attorneys in Cape Town.
Their item is in two parts, first defining the crime of murder and then dealing with a lesser known defence of non-pathological criminal incapacity. It begins:
“Murder is the unlawful and intentional causing of the death of another human being. The essential elements that the State must prove for a conviction are:
• that the perpetrator caused the death (killing) of another human being;
• that such killing was unlawful; and
• that such killing was intentional.”
For the full article, click here
In a report issued today, the Law Commission recommends that prenuptial agreements should become legally enforceable. Up to now, although in some cases a ‘pre-nup’ has been upheld by the English courts in a divorce, there has been uncertainty as to their precise status.
The Law Commission is therefore recommending a change in the law and has published a draft bill which, if adopted, would make prenuptial agreements legally enforceable but subject to certain safeguards.
Aside from high-net-worth individuals who wish to protect wealth from sharing, the Law Commission believes that pre-nups may be suitable for couples who are each independently able to meet their own needs; for example, couples marrying later in life. They may also be attractive where one party has specific assets to protect. That might be inherited property; equally, couples who have children from a previous relationship might be particularly keen to ensure that property is passed to those children.
The proposed safeguards include the following:
(a) The agreement must be contractually valid (and able to withstand challenge on the basis of undue influence or misrepresentation, for example)
(b) The agreement must have been made by deed and must contain a statement signed by both parties that he or she understands that the agreement is a qualifying nuptial agreement that will partially remove the court’s discretion to make financial orders
(c) The agreement must not have been made within the 28 days immediately before the wedding or the celebration of civil partnership
(d) Both parties to the agreement must have received, at the time of the making of the agreement, disclosure of material information about the other party’s financial situation.
(e) Both parties must have received legal advice at the time that the agreement was formed.
The Law Commission has also recommended that it should not be possible for a party to waive their rights to disclosure and legal advice.
Also, they recommend that spouses and engaged couples should not be able to make contractually enforceable agreements that deal irrevocably with their future needs for housing, childcare, an income, or any other aspects of “financial needs”.
If you are thinking of entering into a pre-nup, ContractStore has some templates that you can find here
The Law Commission report can be found here