Ġurisprudenza

Doorstep Selling Directive, Article 5

1. Under article 8 of the Doorstep Contracts Act there is nothing to prohibit the Consumer Claims Tribunal (being the adjudicative forum of first instance in this case) from believing the consumer rather than the trader, in relation to the contention by consumers that they had written to the trader within the 15 day cooling off period informing the trader that they were withdrawing from the agreement entered into.
2. In accordance with article 12 of the said Act the burden of proof in showing that consumers had not actually communicated to the trader their intention of withdrawing from the contract lies with the trader.

This decision was an appeal lodged by the trader - Commonwealth Educational Society Limited – contesting a decision of the Consumer Claims Tribunal (which Tribunal was the adjudicative forum of first instance). Consumers Saviour and Patricia Muscat had requested the Consumer Claims Tribunal to annul a doorstep contract with the trader whereby they contended that they had submitted the cancellation form to annul the contract within the stipulated 15 days. Trader was contending that it had not received the cancellation form and that the Tribunal did not have jurisdiction to hear the case.

The Tribunal held that it had the jurisdiction to hear and determine the case, and decided to give credence to the version of the facts of the case as stated by consumers who said that they had sent the cancellation form within five days from when the contract was entered into. The Tribunal therefore ordered the cancellation of the contract with expenses against the trader.

The trader contested the decision of the Tribunal before the Court of Appeal. The Court of Appeal confirmed the decision of the Tribunal with costs against the trader

Trader contended that consumers on the basis of article 8 of the Doorstep Contracts Act had to prove both the delivery of the cancellation form to it, and the communication of their intention to cancel the contract, whereas consumers submitted that article 12 of the Doorstep Contracts Act placed the burden of proof that the right of cancellation had not been exercised by the consumers within the 15 day period, on the trader.

The Court noted that even if for the sake of argument one agreed with the trader that the burden of proof in this instance lay with the consumers, the Tribunal under the Act – more specifically article 8 thereof – had the faculty of opting to give credence to the version of the facts as stated by the consumers. The Court held that the Tribunal decided to accept the version of the facts of the case as stated by the consumers – namely that they had in fact sent the cancellation form well within the 15 days period. The Court noted that the consumer had under oath testified that he had actually mailed the form within the said period.

The Court further noted under in accordance with the Consumer Affairs Act – article 22(2) thereof – it could only overturn a decision of the Consumer Claims Tribunal if the Tribunal went against the rules of natural justice, and that the Tribunal in doing so prejudiced in a serious manner the rights of the party making the appeal. The Court held that this clearly was not the case as the trader was given ample opportunity to present its evidence and submit its case to the Tribunal.

NOTE: Unlike the other three cases reported below on doorstep contracts, this decision was based on the Doorstep Contracts Act subsequent to the amendments made to the said Act following the amendments as per Act XXVI of 2000. As a result of these amendments, a consumer who wished to cancel a doorstep contracts – in contrast to the previous legal requirements – is required to substantially convey his intention of canceling the contract within the 15 days period. This can be communicated either by word of month, by means of telephone or fax or by delivery by hand or ordinary or registered mail of a notice of cancellation. There is no obligation on the consumer to use the cancellation form provided to him by the trader. For the purposes of the law as amended it is enough if it is clear from the communication that the consumer is canceling the contract.

Under the law as it was prior to the amendments in 2000, the consumer had to use the cancellation form provided and was required to deliver this directly to the trader or mail it by registered post.

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