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24 1995

CONSUMER CREDIT ACT, 1995

PART IV

Matters Arising During Currency of Agreements

Assignment of creditor's or owner's rights.

40. —Where a creditor's or owner's rights under an agreement are assigned to a third person, the consumer shall be entitled to plead against that third person any defence which was available to him against the original creditor including set-off.

Use of bills of exchange, etc.

41. —(1) Where a bill of exchange or a promissory note is given to a creditor by a consumer as part of, or in connection with, a credit agreement, or is given as security for a credit agreement, the existence of the bill or note shall not affect the rights and protections available to the consumer by virtue of this Act.

(2) Where a bill of exchange or a promissory note is negotiated by the creditor to a third party, the consumer may, notwithstanding anything in the Bills of Exchange Act, 1882, in any proceedings for the enforcement of the bill or note, plead against that third party any defence available to him against the creditor.

Liability regarding goods and services.

42. —(1) The existence of a credit agreement shall not in any way affect the rights of the consumer under the Act of 1980 against the supplier of goods or services purchased by means of such an agreement in cases where the goods or services are not supplied or are otherwise not in conformity with the contract for their supply.

(2) Where—

(a) in order to buy goods or obtain services, a consumer enters into a credit agreement with a person other than the supplier of them,

(b) the creditor and the supplier of the goods or services have a pre-existing agreement whereunder credit is made available exclusively by that creditor to customers of that supplier for the acquisition of goods or services from the supplier,

(c) the consumer referred to in paragraph (a) obtains his credit pursuant to that pre-existing agreement,

(d) the goods or services covered by the credit agreement are not supplied, or are supplied only in part, or are not in conformity with the contract for the supply of them, and

(e) the consumer has pursued his remedies against the supplier but has failed to obtain the satisfaction to which he is entitled,

the consumer shall have the right to take proceedings against the creditor.

(3) This section does not apply to housing loans.

Duty to supply documents and information.

43. —(1) Subject to this section, a creditor or an owner shall during the currency of the agreement provide, within 10 days of receipt of a written request by a consumer who is party to the agreement or if that consumer so requires any person specified by him in the request, a copy of the written agreement or a statement of—

(a) the amount paid,

(b) the amount, if any, due but unpaid, and the date and amount of each instalment that remains unpaid, and

(c) the total amount outstanding and the date and amount of each outstanding instalment,

under the agreement.

(2) A creditor or an owner shall not, without reasonable cause, fail to comply within 10 days with a request under subsection (1).

(3) If the default described in subsection (2) continues for a further period of 14 days, then while the default so continues, the creditor or the owner, as the case may be, shall not be entitled to enforce the agreement, or any right to recover goods, and any person shall not be entitled to enforce a security given under the agreement.

(4) Subsection (1) does not apply to a request made less than 4 weeks after a previous request under that subsection relating to the same credit agreement which was complied with.

(5) The request referred to in subsection (1) shall, subject to subsection (6), be accompanied by a fee of £2 or such other amount as may stand specified for the time being in regulations.

(6) Subsection (5) shall not apply where the request is in relation to a moneylending agreement.

(7) This section does not apply to a housing loan.

Appropriation of payments.

44. —(1) Subject to subsection (3), where there are two or more agreements between a consumer and the same creditor or owner and where the consumer makes a payment which is not sufficient to discharge the amount then due under all the agreements, the consumer shall be entitled to appropriate the payment towards the agreements as he sees fit and, if he fails to do so, the payment shall, subject to subsection (2), be appropriated by the creditor or owner, as the case may be, towards the agreements in proportion to the amounts due under the agreements.

(2) Where all the agreements to which subsection (1) applies are hire-purchase agreements, and one-third of the hire-purchase price has been paid under each of the agreements, the owner may, if the hirer has failed to do so, appropriate the payment as he sees fit otherwise the payment shall, by virtue of subsection (1), be appropriated towards the agreements in proportion to the amounts due under the agreements.

(3) This section does not apply where any of the agreements is a housing loan.

Restrictions on written communications.

45. —(1) A creditor, owner or a person acting on his behalf shall not send to a consumer any written communication relating to a credit agreement with that consumer unless the communication is sent in a sealed envelope having nothing written or printed thereon, other than—

(a) the name and address of the consumer, and

(b) at the discretion of the sender—

(i) the words “personal” or “private”, and

(ii) a P.O. Box number together with, if desired by the sender, the words “If undelivered please return to” or similar words.

(2) Subject to subsection (3), a creditor, owner or a person acting on his behalf shall not send any written communication in connection with an agreement with that consumer to the consumer's employer or to any member of the consumer's family unless that employer or family member is a party to the agreement.

(3) Where the agreement referred to in subsection (2) is a housing loan, the creditor or a person acting on his behalf may—

(a) for the purposes of the Family Home Protection Act, 1976 , send any written communication connected with the agreement to the consumer's spouse, or

(b) where the written consent of the consumer has been given, send any written communication connected with the agreement to any member of the consumer's family or to a person designated by the consumer.

Visits and telephone calls.

46. —A creditor, owner or a person acting on his behalf shall not visit or telephone—

(a) a consumer without his consent—

(i) at his place of employment or business unless the consumer resides at that place and all reasonable efforts to make contact with him have failed,

(ii) at any place,

(I) between the hours of 9 o'clock in the evening on any week day and 9 o'clock in the morning on the following day, or

(II) at any time on a Sunday or a public holiday (within the meaning of the Holidays (Employees) Act, 1973 ),

(b) a consumer's employer or any member of the consumer's family unless that employer or family member is a party to the agreement, without the consent of the consumer, given in writing and separate from any other term of agreement,

for any purposes connected with an agreement other than the service of a document in connection with legal proceedings.

Excessive rates of charge for credit.

47. —(1) A consumer or a person acting on the consumer's behalf may apply to the Circuit Court in whose Circuit the consumer resides or in which the agreement was made, for a declaration that the total cost of credit provided for in any agreement is excessive.

(2) Subject to this section, the Circuit Court may decide in any particular case coming before it, by an application under subsection (1), that the total cost of credit provided for in any credit agreement is excessive.

(3) In making the decision referred to in subsection (2) the court shall have regard to all relevant factors including—

(a) interest rates prevailing at the time the agreement was made or, where applicable, interest rates prevailing at any time during the currency of the agreement,

(b) the age, business competence and level of literacy and numeracy of the consumer,

(c) the degree of risk involved for the creditor and the security provided,

(d) the creditor's costs including the cost of collecting repayments, and

(e) the extent of competition for the type of credit concerned.

(4) This section does not apply to any credit agreement relating to credit advanced by a credit institution or a mortgage lender.

(5) In any case where the application under subsection (1) is made by a consumer or a person acting on the consumer's behalf the Circuit Court shall not make an order without first affording the Director the opportunity to be heard on the matter.

Power of court to re-open credit agreement where charge is excessive.

48. —(1) Where the Circuit Court has decided by virtue of section 47 , that the total cost of credit is excessive, it may re-open the credit agreement so as to do justice between the parties and may decide to do any one or more of the following:

(a) relieve the consumer from payment of any sum in excess of the sum adjudged by the court to be fairly due in respect of such total cost of credit;

(b) set aside, either wholly or in part the agreement against the consumer;

(c) revise or alter the terms of the agreement; or

(d) order the repayment to the consumer of the whole or part of any sums paid.

(2) Where an agreement to which subsection (1) relates is a moneylending agreement the court may also order the Director to revoke, suspend or alter the moneylending licence of the holder concerned either immediately or as from such date as the court may decide.

Making demands and threats in relation to unenforceable agreements.

49. —(1) A person shall not make a demand for payment or assert a present or prospective right to payment in respect of an agreement which is unenforceable under this Act.

(2) A person shall not, with a view to obtaining payment in respect of an agreement which is unenforceable under this Act—

(a) threaten to bring any legal proceedings,

(b) place or cause to be placed the name of any person on a list of defaulters or debtors or threaten to do so, or

(c) invoke or cause to be invoked any other collection procedure or threaten to do so.

(3) In any proceedings for an offence under this section, it shall be a defence for the person to show that he had reasonable cause to believe that there was a right to payment.

Cooling-off period.

50. —(1) Subject to subsections (2) and (4), a consumer may withdraw from an agreement within 10 days of receiving it or a copy thereof (“the cooling-off period”) by giving written notice to this effect to the creditor or the owner, as the case may be.

(2) A consumer may forego his right to a cooling-off period in any credit agreement by signing a statement to this effect separately from any other term of the agreement.

(3) A statement by which a consumer forgoes the right to a cooling-off period shall carry in a prominent position:

“WARNING

THIS WAIVER MEANS YOU ARE GIVING UP YOUR RIGHT TO A 10 DAY PERIOD TO RECONSIDER YOUR COMMITMENT TO THE AGREEMENT.”.

(4) This section does not apply to a housing loan or credit availed of by means of a credit card or an overdraft facility offered by a credit institution.