The cooling-off period: what is it really?
At some point or the other, every one of us as consumers has come across the term “cooling-off”, but what does it mean?
To explore this, we’ll rely on the Consumer Protection Act (CPA) as well as the Electronic Communications and Transactions Act (ECTA).
Firstly, “cooling-off” is basically a right afforded to consumers by relevant legislation, that allows the consumer to withdraw from or cancel an agreement that it has entered into with a supplier (or store) without incurring a penalty and without having to furnish a reason for the cancellation, PROVIDED that the consumer cancels the agreement within a relatively short space of time.
So what would be considered a short space of time?
The important thing to note here before we proceed, is whether the agreement (or transaction) was entered into online, or physically as a result of direct marketing.
If an agreement or transaction was entered into online (let’s say you bought a new coat through a website) you would legally have the right to cancel that agreement within 7 (seven) days from the time you received the item as per ECTA (the Act that we mentioned earlier).
However, if an agreement or transaction was entered into physically as a result of direct marketing, you would legally have the right to cancel the agreement within 5 (five) business days from the date that you concluded the transaction or from the date that the items you purchased were delivered to you as per the CPA (the other Act that we mentioned earlier).
At this point you might be wondering what is direct marketing?
Put simply, direct marketing is a method that companies may utilize in order to promote a product or service. This is done by presenting the product or service to a customer without using a middleman to advertise the product.
Some forms of direct marketing will include catalogues; emails; newsletters; online ads targeted to the customer, text messages and phonecalls.
So, what happens after you exercise your cooling-off right and cancel the agreement?
Once the agreement or transaction has been cancelled, the supplier (or store) that you transacted with is obliged to refund you in full for such payment that you had made. Similarly, the item which you purchased is to be returned to the store. Further to this, the supplier is not allowed to charge you any additional levy for the cancellation apart from the costs of delivery to return the purchased item back to the store.
It is important to note that with online transactions, the store is obliged to refund you within 30 (thirty) days from the date of cancellation. Whereas with cancellations as a result of direct marketing, the store is obliged to refund you within 15 (fifteen) days from the date of cancellation or from the date of return of the purchased item to the store.
Okay so which cooling-off period will apply to me?
As stated earlier, the cooling-off period applicable to you will depend on whether you transacted online or whether you transacted as a result of direct marketing.
However, it is important to note that both cooling-off periods cannot apply at the same time. Only one may be applicable depending on the nature of the transaction.
Will cooling-off apply to everything that I purchase?
ECTA specifically makes mention that there is no right of cooling-off in transactions for the supply of foodstuffs, beverages or other goods intended for everyday consumption. Furthermore, there is no cooling-off for transactions where the goods are either made to the consumer's specifications or are clearly personalized, or because of their nature cannot be returned or are likely to deteriorate or expire rapidly. There is also no right to cooling-off given to consumers who have unsealed audio or video recordings or computer software, newspapers and magazines.
The CPA also states that no cooling-off is applicable to any special-order goods.
DISCLAIMER: This article should not be taken as thorough legal advice, and merely serves as a guideline. Each case has its own specific circumstances, and the law is ever-changing, therefore legal advice should be sought by a legal professional thereon. For a consultation on the merits of your case by an experienced admitted attorney, refer to one of our consultation products here.