Case law

  • Case Details
    • National ID: 47/1999/1
    • Member State: Malta
    • Common Name:Commonwealth Educational Society vsVictor Debono
    • Decision type: Other
    • Decision date: 12/06/2003
    • Court: Qorti tal-Magistrati (Court of first instance)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 4
  • Headnote
    In canceling a doorstep contract (this in relation to law as it was prior to the 2000 amendments to the Doorstep Contracts Act) a consumer in order to avail himself of the faculty of canceling within the 15 day cooling off period, must do so in accordance with the procedure established at law. At that time a consumer could cancel a contract only by using the cancellation form provided to him by the door-to-door salesman, and delivering the said form either personally or by registered mail to the trader.
  • Facts
    Plaintiffs Commonwealth Educational Society sued defendant to pay the sum of Lm335 being the price of books allegedly purchased by the consumer following the signing of a doorstep contract. The trader claimed that consumer was acting in breach of his contractual obligations in refusing to accept delivery of the books and to pay for them.

    In this case defendant raised three preliminary pleas which were not related to the Door-to-Door Salesmen Act (this Act was in 2000 renamed the “Doorstep Contracts Act”) namely that:

    i) the proceedings by plaintiff company had lapsed due to prescription under the Civil Code,
    ii) proceedings should have been instituted also against defendant’s wife as the agreement with plaintiff company formed part of the community of acquests,
    iii) that plaintiff company did not have the juridical representation of its foreign principals.

    All three pleas were rejected by the Court.

    The consumer also raised the plea that no payment was due to the trader as he had cancelled the contract within the 15 days period. Consumer stated that he had refused to buy the books, but that the salesman had insisted that the consumer signs “a paper” without explaining anything other that to say that if the consumer did not want the books he could send the “paper” back, Consumer said that he did in fact return this “paper” to the trader within the period communicated to him by the salesman. Consumer further stated that he never received any books from the trader. Consumer stated that on various occasions he had informed representatives of the trader that it was never his intention to purchase the books in question and that any order he may have made was at the insistence of the salesman.

    The Court did not uphold this plea deciding that the consumer had not followed the correct procedure under the Door-to-Door Salesmen Act and that consequently the consumer had to pay to the full amounts being requested by the trader including interests and court expenses.
  • Legal issue
    In the context of the Door-to-Door Salesmen Act, the Court noted that the consumer accepted that no payment was made and that the consumer was contending that the contract was cancelled as he had sent the cancellation form within the 15 days cooling off period in accordance with article 8 of the said Act.

    The Court however held that the consumer did not correctly follow the process under article 8 of the Act in cancelling the doorstep contract he had signed to, as he did not sign the cancellation declaration and failed to deliver the said declaration personally or send it by registered mail, this in according to the law as it was in 1997.

    Article 8 of the Act then (that is prior to 2000 amendments – this case arose in 1997) required that cancellation be effected by using the cancellation form provided by the trader, which form had to be delivered in person to the trader or else sent by registered mail within the 15 days period. The Court noted that consumer was not justified in failing to use a procedure other than that stated at law and moreover noted that consumer prejudiced his interests when he failed to send the letter by registered mail. The Court noted that the special privilege of cancelling a doorstep contract unilaterally is intended to give the consumers time to understand the agreement and if need be, seek advice. The Court noted that the fact that consumer did not bother to read the contract was no justification for him to avoid the effects of valid agreement.

    The Court further noted that consumer did not sufficiently prove his contention that he had signed the contract under pressure from the salesman.

    (Note: It should be noted that in 2000 article 8 was amended. Until then the consumer in cancelling a doorstep contact was required to deliver the cancellation form either personally or send it by registered mail. After the 2000 amendments the measures under article 8 were amended empowering a consumer to cancel a contract by word of month, by telephone or telefax message or by delivery either by hand or ordinary or registered mail. Furthermore in cancelling such contracts a consumer post 2000 is no longer required to avail himself of the cancellation form given to him by the trader but may do so “in any manner provided the intention is substantially conveyed by the consumer to the door-to-door seller or the trader or whose behalf he is acting”).
  • Decision

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