Bill 58 (Legislature 15, Session 3)

L15 S3 1362

Alberta — Bills

No. 58 grd Session, 15th Legislature, Alberta 14 Elizabeth II BILL 58 A Bill Providing for the

Summary Cancellation of Certain Sales of Goods and Services HON. MR. PATRICK Printed by L. S. WALL, Printer to the Queen',s Most Excellent Majesty, Edmonton, Alberta, 1966

Explanatory Note General. This Bill provides that persons who agree to buy goods or services from door to door salesmen may cancel the sale agree ments within four days of the sale or, in certain circumstances, within one year. The Bill is similar to the Hire-Purchase Act W64 of the United Kingdom which was followed to some extent in legislation passed in 1965 in Manitoba (The Consumer Credit Act) and Saskatohewan (The Direct Sellers Act). 2.

Definitions.

BILL No. 58 of 1966

An Act Providing for the

Summary Cancellation of Certain Sales of Goods and Services (Assented to , 1966) HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Alberta, enacts as follows: 1. This Act may be cited as "The Direct Sales Cancella tion Act". 2.

(1) In this Act, (a) "buyer" means a person who signs a sales contract as buyer or offeror, and includes an assignee of that person; (b) "goods" includes (

i) goods to be manufactured or acquired by the seller after a sales contract is entered into, and (ii) growing crops and things attached to or form ing part of land that are, by a sales contract, agreed to be severed, and (iii) things that are intended to be affixed to the buyer's land, but does not include choses in action; (c) "pre-existing contract" means any sales contract or other agreement for the sale of goods or services made before or after the commencement of this Act that is replaced by a sales contract concluded after the commencement of this Act; (d) "related sale", with reference to a sales contract, means any sale of goods that is related to the sales contract or is made in connection with or is inci dental to the sales contract, whether as an induce ment to enter into the sales contract or not and whether m'ade before, at or after the making of the sales contract, and whether it is made with the seller under the sales contract or not; (e) "sales contract" means (

i) an agreement for the sale of goods or services or both for future delivery or performance in whole or in part, or

2 (ii) an agre.ement under which the buyer, upon the happenIng of 3;n event or the payment of the prIce or complIance with a condition, will be come the owner of goods or entitled to the performance of services or both, or (iii) an ~greement under which the buyer may, at his optIon, become the owner of goods or be entitled to buy goods or be entitled to the performance of services, or (iv) a sale of goods effected by way of a lien note or by way of any agreement or arrangement made at the time of the sale or subsequent thereto whereby the buyer gives to the seller a chattel mortgage or a bill of sale covering the whole or part of the purchase price of the goods sold, or (

v) an offer to buy goods or services or to enter into any agreement of the kinds mentioned in sub clauses (

i) to (iv) ; (I) "salesman", with reference to a sales contract, means any person, other than the seller, who solicits, negotiates or arranges for the signing by the buyer of the sales contract or who in any way participates in soliciting, negotiating or arranging for the sign ing by the buyer of the sales contract; (g) "seller", with reference to a sales contract, means the person (

i) who is specified in the sales contract as seller of the goods or as the person obligated to perform the services or to cause the services to be per formed, or (ii) who is deemed to be the seller under the sales contract by virtue of subsection (1) of

section 4, and includes an assignee of that person; (h) "trade-in allowance" means (

i) the sum which, under a trade-in arrangement, is agreed to be allowed in payment or in part payment of the goods or services sold or to be sold under the sales contract, or (ii) if that sum is not agreed upon, an amount that would in all the circumstances, have been rea sonabie to allow in payment or in part pay ment, as the case may be, of the goods if no notice of can cella tion had been served under

section 6 in respect of that sales contract; (i) "'trade-in arrangement" means an agreement or ar rangement, contained in a sales contract or forming the whole or part of a related agreement, whereby the buyer sells or agrees to sell his own goods to the seller or any other person and the goods are ac cepted as the whole or part of the consideration under the sales contract.

3. Application ot Ad. 4. ( 1) Person deemed to be seller.

(2) Representations by salesman deemed to be made as agent of seller. 3

(2) For the purp'Oses of this Act, a sales contract is con cluded when it is signed by the buyer. 3.

(1) This Act applies only to sales contracts c'Oncluded after the c.ommencement of this Act.

(2) This Act does not apply to cases where the sales con tract is solicited, negotiated or concluded at (a,) the seller's or the salesman's normal business premises, or (

b) a market place, auction, trade fair, agricultural fair 'Or ,exhibition.

(3) This Act does not apply (

a) to a sales contract made (

i) between a manufacturer or distributor and a wholes'aler in respect of goods that the whole saler intends to resell in the course of his busi ness, or (ii) between a manufacturer, distributor or whole saler and a retailer in respect of goods that the retailer intends to resell in the course of his business, or (

b) to a sales contract under which a retailer is the buyer .of goods intended to be used in his business but not f.or resale, or (

c) to a sales contract under which the original buyer is a corporation, or (

d) to a sales contract negotiated, solicited and con cluded without any dealings in person between the seller and the buyer or any salesman and the buyer, or (

e) to a sales contract under which the goods to be de livered consist only of food or food products in a perishable state at the time of delivery, or (

I) except as otherwise provided in the regulations, to a sales contract under which the goods to be de livered consist 'Only of goods manufactured in AI ,berta.

(4) The Lieutenant Governor in Council may make regulations declaring that this Act applies to any class or kind of goods manufactured in Alberta. 4.

(1) Where the seller is not specified in the sales con tract at the time it is signed by the buyer, then any person by whom, or on whose behalf, the sales contract is signed at any subsequent time and who is then specified in the sales contract as the seller, shall be deemed to be and at all material times to have been the seller under that sales con tract.

(2) Any oral or writte~ r~presentati.o~, statement or undertaking, whether constItutIng a condItIon or warranty 3

4 5. Requirements to be met by the seller before he can enforce a sales contract. 6. Cancellation of sales contract by the giving -of notice of can cellation by the buyer.

or not, made to the buyer by a salesman with respect to goods covered by a sales contract or a related sale shall be deemed to have been made by the salesman as agent of the seller, but n~thi.n.g in thi~ subsection exonerates any person from any lIabIlIty to whIch he would be subject apart from this subsection. 5. A sales contract is void as against the seller unless (

a) it is signed by the buyer, (

b) it contains a notice in the form in the

Schedule to this Act an~ co.mpleted as to paragraph 4 thereof, and the notice IS at least as prominent as the rest of the contents of the sales contract, and (

c) a copy of it is received by the buyer, by personal delivery or by mail, within seven days after the day the sales contract was signed by the buyer. S. (1) A buyer may rescind a sales contract by giving a notice of cancellation in accordance with this

section (

a) not later than the fourth day after the date on which the copy of the sales contract was received by him, by personal delivery or by mail, or (

b) not later than one year after the date on which the copy of the ·sales contract was received by him, by personal delivery or by mail, if (

i) all of the goods or services to be supplied under the sales contract are not supplied within thirty days of the date specified therein for delivery or performance, or, if no such date is specified, then within one hundred and twenty days after the day on which the sales contract was signed by the buyer, or (ii) the seller was during the period in which the sales contract was solicited, negotiated and concluded, required to he licensed under The Licensing of Trades and Businesses Act but was not so licensed, or (iii) any salesman was, at any time while dealing with the buyer, required to be lice!lsed under The Licensing of Trades and Bustnesses Act but was not so licensed.

(2) A notice of cancellation under this

section is sufficient if, however expressed, it indicates the intention of the buyer to cancel, terminate or withdraw from the sales contract.

(3) A notice of cancellation under this

section may be given by delivering it or sending it by mail 4 (

a) to the seller or a person named in the sales con tract as a person to whom a notice. of cancellation may be given, at the address shown In the sales con- tract, or (

b) if the buyer's copy of the sale~ contract was pot r~ ceived by him, by personal delIvery or by mall, or If

7. Effect of cancellation of sales contract. 8. Obligations of buyer and seller as to return and interim care of the goods. 5

nO' address Df the seller Dr Dther perSDn is shDwn in the sales cDntract, (

i) to' any salesman, Dr (ii) to' any address Df the seller knDwn to' the buyer, or (iii) to' the Minister Df Industry and Development.

(4) FDr the purpDses Df this sectiDn a nDtice Df cancella tiDn sent by mail shall be deemed to' be given at the time it is mailed. 7.

(1) A nDtice Df cancellation given in accordance with sectiDn 6 Dperates (

a) to cancel the sales contract, Dr (

b) where the sales cDntract is an offer to buy, to' with draw the Dffer, as if the sales cDntract never existed.

(2) A nDtice Df cancellatiDn given in accordance with seC'tion 6 alsO' Dpera tes to' cancel (

a) any related sale, (

b) any guarantee given in respect of money payable under the sales cDntract, and (

c) any security given by the buyer or a guarantor in respect of money payable under the sales cDntract, as if it never existed. 8.

(1) The seller shall within fifteen days Df the giving of a notice of cancellatiDn in accordance with

section 6 (

a) refund to' the buyer all mDneys paid under the sales cDntract, any related sale and any pre-existing cDntract, and (

b) return to the buyer's premises any goods delivered by the buyer under a trade-in arrangement.

(2) Where a nDtice Df cancellation is given in aCCDrdance with sectiDn6, the buyer shall return to an authorized perSDn goods that came intO' the buyer's pDssessiDn under the sales cDntract or a related sale Dr pre-existing cDntract if a written request is given to' the buyer by an authDrized perSDn and signed or purpDrting to' be signed by Dr on behalf Df the seller, but the DbligatiDn of the buyer under this subsec tiDn is subject to any lien or right to' retain the gDods that he may have under

section 9 and his right to enforce the lien. (3) 'The buyer may (

a) return the gDDds to' an authDrized persDn Dr ~o a perSDn designated fDr the purpose by an authorIzed person, at a place elsewhere than at the buyer's premises, Dr (

b) return the goods at his Dwn expense to the seller Dr to' any perSDn specified in the sales cDntract as a person to' whDm a notice Df cancellatiDn may be sent. 5

9. Buyer's right to retain possession and enforce his lien on goods remaining in his possession. 6

(4) A return of the goods in accordance with subsection (2) or (3) shall be deemed to be made with the consent of the seller or, if the seller is not entitled to possession of the goods, with the consent of the person so entitled, and operates to discharge the buyer from any obligation to retain the goods or deliver them to the person so entitled.

(5) The buyer is under an obligation to take reasonable care of goods delivered to him under a sales contract or re lated agreement until (

a) the return of the goods in accordance with sub section (2) or (3), or (

b) the expiration of the period of twenty-one days after the giving of the notice of cancellation, whichever event occurs first, and if he sends them to the seller or other person in accordance with -clause (

b) of sub section (3), he is under an obligation to take reasonable care to see that they are received by the person to whom they are sent and are not damaged in transit to him.

(6) Any obligation under subsection (5) is owed to the person for the time being entitled to possession of the goods and any breach of that obligation is actionable, at the suit of that person, as a breach of statutory duty.

(7) The buyer is under no obligation under this

section to return the goods elsewhere than at the buyer's premises.

(8) Except as provided by this section, the buyer is not under any obligation, whether arising by contract or other wise, to take care of the goods.

(9) In this section, (a) "authorized person" means (

i) the seller or any salesman, or (ii) the person for the time being entitled to posses sion of the goods, or (iii) a person specified in the sales contract as a person to whom a notice of cancellation may be given, and (b) "buyer's premises" means the place specified in the sales contract as the buyer's address, or, if the address shown does not specifically identify that place by a municipal address, land description or other description sufficient to distinguish that place from any other, the place where the buyer actually resided at the time the sales contract was made. 9. Where a notice of cancellation is served in accordance with

section 6, the buyer is entitled to retain po.ssession of goods delivered to him under a sales contract, related sale or pre-existing contract 6 (

a) until all moneys paid under the sales contract, re lated sale or pre-existing contract are refunded, and

10. Recovery of moneys paid and of goods traded in on a trade-in arrangement. II. Money recovered from bond proceeds under The Licensing of Trades and Businesses Act are deemed to be recovered from the seller. 12. Waiver or release void. 13.

Chapter 175 of the Revised Statutes is amended. Procedure for the use of bond proceeds for the benefit of buyers having claims against a seller. 7

(

b) in the case of a trade-in arrangement until either (

i) the g~ods delivered by the buy~r under the trade-In arrangement are returned to him in a condition sUbstantially the same as when they were delivered by him, or (ii) a sum equal to the trade-in allowance is paid to him, and the buyer while in possession has a lien on those goods for any moneys so owing to him. 10.

(1) Where the seller fails to refund to the buyer all moneys required to be refunded under clause (

a) of subsec tion (1) of

section 8, the buyer may recover those moneys from the seller.

(2) In the case of a trade-in arrangement, unless (

a) the seller returns the buyer's goods to him in ac cordance with subsection (1) of

section 8, and (

b) the goods are then in a condition sUbstantially the same as when they were delivered by the buyer, the buyer may recover from the seller an amount equal to the trade-in allowance for the goods.

(3) An amount recoverable under subsection (1) or (2) may be recovered as a simple contract debt.

(4) Where the buyer recovers an amount equal to the trade-in allowance, then, if the title of the buyer to goods delivered by him under the trade-in arrangement did not pass from the buyer, the title vests in the person entitled thereto under the trade-in arrangement. 11. Where pursuant to regulations under The Licensing of Trades and Businesses Act the proceeds of a bond are used for the benefit of buyers who have not recovered moneys owing to them following the cancellation of sales contracts, any money paid to a buyer from the proceeds of the bond shall be deemed to have been recovered from the seller. 12.

Any waiver or release of the rights, benefits or pro tection given by this Act is against public policy and void. 13. The Licensing of Trades and Businesses Act is amended (

a) as to

section 5, subsection (1), clau~e (

j) by strik ing out subclause (

v) and by substItutIng the foI- ling: (

v) requiring in respect of any specified business or description or class of bus~ness that a. bond be given in respect of the applIcant for a lI~~nce in the form and amount and on the condItIons prescribed by the Minister, and (

b) by adding the following

section after

section 5a: 7

14. Commencement of Act. 8

(1) Where the business of negotiating solicit ing and concluding sales contract,s to which The Direct Sa~e~ Cancellation ;4-ct applies is designated by the MInI~ter as a b~sInes~ or a description or class 'Of busIness t'O whIch thIS Act applies and a b'Ond given to the Minister in respect of a seller or salesman is forfeited by reason of breach of a con dition o.f the bond requiring compliance with the provisions of The Direct Sales Cancellation Act, the proceeds of the b'Ond may be used for the benefit 'Of persons who, as buyers under the sales contracts, have claims against the seller f'Ollowing cancella tion of the sales contract in accordance with

section 6 of that Act.

(2) Notwithstanding that the Crown in right of Alberta has not suffered any loss or damages, the bond mentioned in subsection (1) shall be con strued as a penal b'Ond and upon forfeiture the amount owing to the Crown by the person bound thereby shall be determined as if the Crown suf fered such damages as would entitle the Crown to be indemnified to. the maximum amount of liability prescribed by the bond.

(3) The Minister may by order make regulations providing for (

a) the procedure for the filing of claims by the claimants referred t'O in subsection (1), (

b) the manner of proving the claims, and (

c) the conditions on which the proceeds of the bonds are to be used to satisfy the claims filed. ( 4) Any moneys remaining unexpended after the satisfaction of the claims pursuant to the regulations shall be refunded to the surety or obligor under the bond. 14. (1) 'This Act, except clause (

a) of secti'On 13, comes into. force 'On the first day of July, 1966.

(2) Clause (

a) of

section 13 comes into force on the day upon which this Act is assented to.

SCHEDULE THE DIR'EGT SALES GANOELLA'TION ACT STATUTORY NOTICE Right of Cancellation by Buyer 1. This is a sales contract to which The Direct Sales Cancellation Act of Alberta applies. 2. The buyer may cancel this contract by giving n~tice of cancellation within four days after the date on whIch th.e buyer's copy of this contract is delivered o~ sent by mall to. him, without giving reasons for cancellatIOn. S

3. The buyer may cancel this contract by giving notice of cancellation within one year of the date on which the buyer's copy of this contract is delivered or sent by mail to him in any of the following cases: ' If the goods or services to be supplied under this contract are not supplied within thirty days after the date specified in this contract for their delivery or performance. OR If no such date is specified and the goods or services are not supplied within one hundred and twenty days after the date this contract was signed by the buyer.

OR If the seller herein was during the period in which this contract was solicited, negotiated and concluded, required to be licensed under The Licensing of Trades and Businesses Act, but was not so licensed. OR If any salesman who conducted or participated in the soliciting, negotiating or arranging for the signing of this agreement by the buyer, was required to be licensed under the said Act but was not so licensed. 4.

A notice of cancellation under paragraph 1 or 2 may be delivered to or sent by mail to .... (insert name and address of the seller or other person) and if sent by mail, is deemed to be given at the time of mailing. 5. The buyer is advised to make and keep a copy of the notice of cancellation for his own use and to note the date on which it was delivered or mailed, if it is not sent by registered mail. 6. This statutory notice indicates in a general way only the buyer's rights of cancellation.

The Direct Sales Can cellation Act should be -consulted as to the right of cancella tion and other rights of the buyer in respect of this contract. 9

No. 58 THIRD SESSION FIFTEENTH LEGISLATURE 14 ELIZABET'H II 1966 BILL

An Act Providing for the

Summary Cancellation of Certain Sales of Goods and Services Received and read the First time ....................................... . Second time .................................... . Third time ................................... .. HON. MR. PATRICK Title: 1966 (15th, 3rd) Bill 58,

An Act Providing for the

Summary Cancellation of Certain Sales of Goods and Services

Document details

Collection	Alberta — Bills
Citation	L15 S3 1362
Type	bill
Volume / chapter	L15 S3 1362
Language	en
Format	json
Source	PROVINCIAL
Identifier	878a6a96643f2aacc34bdd9646cc3b1459112176

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