DISTANCE SELLING _g S.L.378.08 1
SUBSIDIARY LEGISLATION 378.08
DISTANCE SELLING REGULATIONS
4th September, 2001
LEGAL NOTICE 186 of 2001.
Citation.
Regulations.
Interpretation.
Cap. 378.
"commercial guarantee" shall have the same meaning as under
the Act;
"consumer" shall have the same meaning as under the Act;
"Council" means the Consumer Affairs Council;
"distance contract" means any contract concerning goods or
services concluded between a trader and a consumer under an
organised distance sale or service provisions scheme, arrangement,
undertaking or similar activity run or operated by the trader, who
for the purpose of the contract, makes exclusive use of one or more
means of distance communication up to, and including, the moment
when the contract is concluded;
"distance contract solicitation" means any distance
communication, whether public or personalised, and includes all
the necessary elements to enable the consumer to enter directly into
a contractual commitment, sohowever that the forms of advertising
that do not include the elements necessary for the consumer to enter
directly into a contractual relationship shall not be considered as
distance contract solicitations;
"means of distance communication" refers to any means which,
without the simultaneous physical presence of the trader and the
consumer, may be used for the purposes of the conclusion of a
contract between those parties as contained in the First Schedule;
"Minister" means the Minister responsible for consumer affairs;
"operator of a means of communication" means any person
whose trade, business or profession involves making one or more
means of communication at a distance available to traders;
"trader" shall have the same meaning as under the Act.
Exemptions.
( a ) concluded by means of automatic vending machines or
automated commercial premises;
( b ) concluded with telecommunications operators through
the use of public payphones;
( c ) concluded for the construction and sale of immovable
property or relating to other immovable property
rights, except for rental;
2 _g S.L.378.08 DISTANCE SELLING
( d ) concluded at an auction; and
( e ) relating to financial services such as those contained in
a list in the Second Schedule.
(2) Regulations 4, 5, 6 and 7(1) shall not apply to contracts -
( a ) for the supply of foodstuffs, beverages, or other goods
intended for current consumption supplied to the home
of the consumer, to his residence or to his workplace
by regular roundsmen;
( b ) for the provision of services with respect to
accommodation, transport, catering or leisure, where
the trader undertakes, when the contract is concluded,
to provide such services on a specific date or within a
specific period.
Prior information. 4. (1) In good time before the conclusion of any distance
contract, the trader shall, in a clear and comprehensible manner
appropriate to the means of distance communication used, provide
the consumer with the following information:
( a ) the full name and the permanent address of trade or
business of the trader;
( b ) a description of the main characteristics of the goods
or services;
( c ) the price of the goods or services including any taxes
or any charges due;
( d ) delivery costs, where appropriate;
( e ) the arrangements for payment, delivery or
performance;
( f ) the existence of the right of cancellation by the
consumer, except in the cases referred to in regulation
6(5);
( g ) the cost of using the means of distance
communication, where it is calculated at a rate higher
than the basic rate;
( h ) the period for which the offer or the price remains
valid; and
( i ) where appropriate, the minimum duration of the
contract in the case of contracts for the supply of
products or services to be performed permanently or
recurrently:
Provided that the information required uner this
subregulation shall be given in accordance with the principles of
good faith in commercial transactions, and no improper advantages
shall be taken of any inability of the consumer due to age, infirmity
or otherwise. The trader shall in any case always make clear the
commercial purpose of the information given.
(2) A contract concluded during the course of a telephone
communication shall, at the option of the consumer, be
unenforceable against the consumer unless at the beginning of the
DISTANCE SELLING _g S.L.378.08 3
conversation the trader makes his identity and the commercial
purpose of the call explicitly clear to the consumer.
(3) In case of dispute it shall be for the trader to prove that he
had provided the consumer with all such information required by
subregulations (1) and (2).
Written 
confirmation of 
information.
5. (1) A contract to which these regulations apply shall, at the
option of the consumer, be unenforceable against the consumer
unless the trader has provided the consumer with written
confirmation or confirmation in another tangible medium available
and accessible to the consumer of the information referred to in
regulation 4(1)( a ) to ( f ) either -
( a ) prior to the conclusion of the contract, or
( b ) in good time during the performance of the contract,
and at the latest at the time of delivery where goods
not for delivery to third parties are concerned.
(2) No contract to which these regulations apply shall be
enforceable against the consumer unless the trader has provided the
consumer with the following:
( a ) written information on the conditions and procedures
for exercising the right of cancellation under
regulation 6, including the cases referred in regulation
6(5)( a );
( b ) the full name and the permanent address of trade or
business of the trader to which the consumer may
address any complaints;
( c ) information on after-sales services and commercial
guarantees which exist; and
( d ) the concluding date for cancelling the contract, where
it is of an unspecified duration or of a duration
exceeding one year.
(3) Subregulation (1) shall not apply to services which are
performed by the use of a means of distance communication, where
they are supplied on only one occasion and are invoiced by the
operator of the means of distance communication. Nevertheless, the
consumer shall in all cases be entitled to obtain the permanent
address of the place of trade or business of the trader to whom he
can address any complaints.
(4) In case of dispute, it shall be for the trader to prove that
written confirmation of the information which he is required to
provide under subregulations (1) and (2) has been provided to the
consumer.
Right of 
cancellation.
6. (1) A consumer may within fifteen days cancel any
distance contract without incurring any penalty and without giving
any reason. The period for the exercise of this right shall begin -
( a ) in the case of goods, from the day of receipt by the
consumer where the obligations laid down in
regulation 5(1) and (2) have been fulfilled;
4 _g S.L.378.08 DISTANCE SELLING
( b ) in the case of services, from the day of conclusion of
the contract or from the day on which the obligations
laid down in regulation 5(1) and (2) were fulfilled if
they are fulfilled after the conclusion of the contract,
on condition that this period does not exceed the three
month period referred to in subregulation (2).
(2) If the trader has failed to fulfil the obligations laid down in
regulation 5(1) and (2), the period shall be three months, which
period shall begin -
( a ) for goods, from the day of receipt by the consumer;
and
( b ) for services, from the day of conclusion of the
contract:
Provided that if the information referred to in regulation
5(1) and (2) is supplied within such three month period, the fifteen
day period during which the consumer shall have the right to cancel
the distance contract shall commence from the moment that the
information is supplied.
(3) Where the consumer has exercised his right of cancellation
under this regulation, the trader shall be obliged to reimburse any
sums paid by the consumer. Such reimbursement shall be carried
out as soon as possible and in any case within thirty days.
(4) The only charge that may be made to the consumer if he
exercises his right to cancel under this regulation is the direct cost
of returning the goods.
(5) Unless the parties have otherwise agreed, the consumer
may not exercise his right to cancel under subregulation (1) in
respect of contracts -
( a ) for the provision of services, if performance has
begun, with the consent of the consumer before the
end of the fifteen day period referred to in
subregulation (1);
( b ) for the supply of goods or services the price of which
depends on fluctuations in the financial market which
cannot be controlled by the trader;
( c ) for the supply of goods made-to-measure to the
specifications of the consumer and are clearly
personalized ox which, by reason of their nature,
cannot be returned or are liable to deteriorate or expire
rapidly;
( d ) for the supply of audio or video recording or computer
software which are unsealed by the consumer;
( e ) for the supply of newspapers, periodicals and
magazines; and
( f ) for gaming and lottery services.
Performance of a 
distance contract.
7. (1) Unless the parties have otherwise agreed, the trader
must execute the order within a maximum of thirty days from the
day following that on which the consumer forwarded his order to
DISTANCE SELLING _g S.L.378.08 5
the trader.
(2) Where a trader fails to perform his part of the contract
because the goods or services ordered are unavailable, the
consumer must then be informed of this situation and the consumer
shall be entitled to obtain from the trader a refund of any sums paid
as soon as possible and in any case not later than thirty days.
Restriction on the 
use of certain 
means of distance 
communication.
8. A trader who, in soliciting custom, uses any of the
following means of distance communication without having first
obtained the consent of the consumer, being -
( a ) facsimile machine (fax),
( b ) automatic calling units,
shall be liable to compensate the consumer for any inconvenience
caused and resultant damages suffered.
Consumer may ask 
trader not to make 
solicitations.
9. A consumer may ask a trader not to make any distance
contract solicitation addressed to him. If the trader persists in doing
so after having been asked by the consumer to desist, such trader
shall be liable to compensate the consumer for any inconvenience
caused and any resultant damages suffered.
Distance contracts 
cannot be 
concluded with 
minors, etc.
Cap. 12.
10. A distance contract concluded with a minor, or a person
who is interdicted or incapacitated in accordance with the Code of
Organization and Civil Procedure shall be null and without effect.
Cancellation of 
credit agreements.
11. (1) If a consumer exercises the right to cancel a distance
contract under these regulations and the goods or services were
purchased by him on credit, then the credit agreement, if any,
concluded with the trader shall also be cancelled if:
( a ) the credit has been provided directly by the trader, or
( b ) the credit has been provided by a third party, on the
basis of a prior agreement with the trader under which
the third party provided the credit to the consumer for
the purpose of acquiring the goods or services
provided by the trader.
(2) The consumer shall incur no penalty if he cancels a credit
agreement in accordance with this regulation.
Payment by card.
where fraudulent use has been made of his credit card in connection
with a distance contract to which these regulations apply.
(2) The consumer shall be entitled to be recredited with all
sums debited as a result of the fraudulent use of his credit card in
connection with a distance contract to which these regulations
apply.
Burden of proof.
( a ) the content of the information supplied to the
consumer in accordance with regulation 4(1) prior to
the conclusion of any distance contract;
( b ) the existence of a prior request by a consumer in
accordance with regulation 9;
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( c ) the consent of the consumer to a distance contract; or
( d ) the compliance by the trader with the time limits
prescribed under these regulations,
the burden of proof shall lie with the trader.
Unsolicited goods 
and services.
14. (1) A consumer shall not be liable to pay a trader for any
unsolicited goods or services or both together supplied to him by a
trader.
(2) A consumer may treat any unsolicited goods or services
supplied to him by a trader as if they were an unconditional gift to
him, and any right of the trader thereto shall be terminated.
(3) A trader who makes a demand for payment, or asserts a
present or prospective right to payment, for what he knows are
unsolicited goods or services to a consumer with a view to the
consumer acquiring such goods or services, shall be guilty of an
offence.
(4) A trader who with a view to obtaining any payment for
what he knows or ought to know are unsolicited goods or services:
( a ) threatens to bring any legal proceedings;
( b ) places or causes to be placed the name of a consumer
on a list of defaulters or debtors, or threatens to do so;
or
( c ) invokes or causes to be invoked any other collection
procedure, or threatens to do so,
shall be guilty of an offence.
Trader who 
persists in 
supplying 
unsolicited goods, 
etc.
15. A trader who persists in supplying unsolicited goods or
services after the consumer has informed him, even verbally, that
such goods or services are not required, shall be guilty of an
offence.
Applicability of 
Parts IX and X of 
the Act.
16. Parts IX and X of the Act shall apply to these regulations
as if references to the Act or Parts thereof were references also to
these regulations.
Offences and 
penalties.
17. (1) Any person who fails to comply with these
regulations, which failure constitutes an offence, shall be liable on
conviction to a fine ( multa ) of not less than one hundred liri but not
exceeding two thousand liri, and to a fine ( multa ) of not less than
twenty-five liri and not exceeding fifty liri for every day during
which the default continues.
(2) Where an offence under these regulations has been
committed by a body corporate and is proved to have been
committed with the consent or connivance of, or to have been
facilitated by any neglect on the part of any director, manager,
secretary or other similar officer of such body, or of any person
who was purporting to act in any such capacity, both that person, as
well as such body, shall be guilty of an offence under these
regulations.
DISTANCE SELLING _g S.L.378.08 7
FIRST SCHEDULE
(Regulation 2)
Means of Distance Communication
1. Unaddressed printed matter
2. Addressed printed matter
3. Standard letter
4. Press advertising with order
5. Catalogue
6. Telephone with human intervention
7. Telephone without human intervention (automatic calling machine,
audiotext)
8. Radio
9. Videophone (telephone with screen)
10. Videotex (microcomputer and television screen) with keyboard or touch
screen
11. Electronic mail
12. Facsimile machine (fax)
13. Television (teleshopping).
SECOND SCHEDULE
(Regulation 3)
Financial Services
- Investment services, including services of collective investment schemes;
- Insurance and re-insurance operations;
- Banking services;
- Operations relating to dealings in futures or options;
Such services include in particular: the services and activities regulated by the
following laws:
• The Investment Services Act - Cap. 370
• The Banking Act - Cap. 371
• The Financial Institutions Act - Cap. 376
• The Insurance Business Act - Cap. 403
• The Insurance Brokers and Other Intermediaries Act - Cap. 404.
