The Gazette 1995

GAZETTE

MAY/JUNE 1995

6. Nothing in these Regulations shall:-

further Schedule to the Regulations.

S.I. No. 27 of 1995 - European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 On 1 February 1995 the Minister for Enterprise & Employment introduced these Regulations implementing Council Directive No. 93/13/EEC of 5 April 1993. As the Directive should have been implemented by 31 December 1994 the Regulations have been given retrospective effect from that date. The essential feature of the Regulations is the prohibition of unfair terms in contracts concluded after 31 December 1994 between, on the one hand, a seller of goods or supplier of services who is acting for purposes related to his business (which includes a trade or profession and the activities of any government department or local or public authority), and, on the other, a consumer, beipg a natural person who is acting for purposes which are outside his business. Excluded from the scope of the Regulations are contracts of employment, contracts relating to succession rights and rights under family law and contracts relating to the incorporation and organisation of companies or partnerships. The Regulations provide that a contractual term shall be regarded as unfair if it has not been individually negotiated and if, contrary to the requirement of good faith (as to the assessment of which, guidelines are set out in a Schedule to the Regulations), and having regard to the nature of the goods or services and all the circumstances attending the conclusion of the contract, it causes a significant imbalance between the parties as regards their respective rights and obligations under the contract, to the detriment of the consumer. A contact term is deemed not to have been individually negotiated where it has been drafted in advance and the consumer has not therefore been able to influence its substance. In addition, an indicative and non- exhaustive list of the terms which may be regarded as unfair is contained in a

The assessment of the unfair nature of the terms of a contract may not be based on the definition of the main subject matter of the contract nor on the adequacy of the price of the goods sold or the remuneration for the services supplied. A contractual term which is unfair will not be binding on the consumer; the contract itself will, however, continue to bind the parties, provided it is capable of continuing in existence without the unfair term. Where contractual terms are offered to consumers in writing, the Regulations impose an obligation on the seller or supplier to ensure that they are drafted in plain, intelligible language. It is unclear whether a term which is not in plain language will be deemed an unfair term but the Regulations provide that if there is any doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail.

(a) affect any arrangement in

writing, whenever made, between a solicitor and his client as to the application of the client's money or interest thereon; or (b) apply to money received by a solicitor, being money subject to a trust of which the solicitor is a trustee; or (c) deprive a solicitor of any legal recourse or right, whether by way of lien, charge or otherwise, that the solicitor or his firm may have against a client's money standing to the credit of a deposit account. 7. Nothing in these Regulations shall require an accountant, in complying with regulation 22 of the Solicitors Accounts Regulations No 2 of 1984 (S.I. No 304 of 1984), to make an examination as to whether a solicitor has complied with these Regulations in relation to accounting to a client for interest on money received by the solicitor or his firm for or on account of the client. Signed on behalf of the Law Society of Ireland pursuant to section 79 of the Solicitors Act, 1954 PATRICK A. GLYNN, President of the Law Society of Ireland I consent to the making of the within Regulations pursuant to section 73(1) of the Solicitors (Amendment) Act, 1994. Dated this 27th day of April, 1995

Cormac O 'Hanlon Chairman Company and Commercial

Law

Committee

Solicitors' Accounts Regulations - April 30 1995

Costs Received - Lodgment Procedures

On a number of occasions in the past, the Society's Compensation Fund has been exposed to risk because solicitor's practices have lodged monies received in respect of undischarged outlays to office account, and subsequently have had difficulty because of working capital constraints, effecting payments to the third parties to whom the monies were due. In order to protect the Compensation Fund and to ensure compliance by practitioners with the Solicitors' Accounts Regulations, the Compensation Fund Committee on behalf of the Council of the Society have issued the following practice note, 161

Dated this 2nd day of May 1995

DECLAN COSTELLO, President of the High Court