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    This discussion has been archived. No new comments can be posted.
    Did Jeff Davies find a legal loophole? | Log in/Create an Account | Top | 143 comments | Search Discussion
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    Getting "authorised officers" to enter Afilias off
    by Anonymous on Sunday January 05 2003, @12:14AM (#10889)
    EUROPEAN COMMUNITIES (UNFAIR TERMS IN CONSUMER CONTRACTS) REGULATIONS 1995 - REGULATION 10


    10. (1) The Minister or the Director may appoint in writing any person being a whole-time officer of the Minister to be an authorised officer for the
    purposes of these Regulations.


    (2) The Minister or the Director may appoint in writing any person to be an authorised officer for a fixed period for the purposes of all or any of the
    provisions of these Regulations.


    (3) Every authorised officer shall be furnished with a warrant of appointment as an authorised officer stating that the officer is acting under these
    Regulations and, when exercising any power conferred by paragraph (4) of this Regulation, if requested to do so, produce the said warrant.


    (4) An authorised officer may, for the purpose of obtaining information which may enable the Director to discharge functions under these Regulations, on
    production of the warrant of appointment, if so required—


    ( a ) at all reasonable times enter premises at which any business or any activity in connection with a business is carried on and inspect the premises and any goods on the premises and, on paying or making tender of payment therefor, take any of the goods,


    ( b ) require any person who carries on such business or activity and any person employed in connection therewith to produce to the authorised officer any books, documents or records relating to such business or activity which
    are in that person's power or control and to give the officer information in regard to any entries in any books, documents and records,


    ( c ) inspect and take copies from such books, documents and records.


    ( d ) require any such person to give to the authorised officer any information the officer may require in regard to the persons carrying on such
    business or activity or employed in connection therewith,


    ( e ) require any such person to give to the officer any other information which the officer may reasonably require in regard to such business or
    activity.



    snip



    Schedule 2: Guidelines for Application of the Test of Good Faith.



    In making an assessment of good faith, particular regard shall be had to
    — the strength of the bargaining positions of the parties,
    — whether the consumer had an inducement to agree to the term,
    — whether the goods or services were sold or supplied to the special order of
    the consumer, and
    — the extent to which the seller or supplier has dealt fairly and equitably with the consumer whose legitimate interests he has to take into account.




    SCHEDULE 3 Unfair Terms in Consumer Contracts 1. Terms which have the object
    or effect of:
    ( a ) excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting
    from an act or omission of that seller or supplier;


    ( b ) inappropriately excluding or limiting the legal rights of the consumer vis-a-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of
    any of the contractual obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him;


    ( c ) making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realization depends on his own will alone;


    ( d ) permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without
    providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the
    contract;



    THIS SEEMS VERY INTERESTING IN RELATIONSHIP TO PRE-REGISTRATIONS IN EUROPE


    ( e ) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;


    ( f ) authorizing the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer,



    or
    permitting the seller or supplier to retain the sums paid for services not yet supplied by him where it is the seller or supplier himself who dissolves the contract;


    ( g ) enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so;


    ( i ) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;


    INTERESTING-NO OPPORTUNITY OF BECOMING ACQUAINTED WITH THE IMPLICATIONS OF THE ABUSE AND FAILURE OF THE SUNRISE POLICY


    ( j ) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;


    Hmmm... you mean like UNILATERALLY ALTERING THE CHALLENGE TERMS?


    ( k ) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;


    ( l ) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase
    their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded;


    ( m ) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract;


    ( n ) limiting the seller's or supplier's obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;


    ( o ) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his;


    Does the consumer have a right to cancellation of contract in cases such as the Lorenz domains where a SUPPLIER DID NOT PERFORM HIS OBLIGATIONS (example - requirement to carry out rules of Agreement)?


    ( p ) giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the
    guarantees for the consumer, without the latter's agreement;


    ( q ) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to
    take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden
    of proof which, according to the applicable law, should lie with another party to the contract.




    Richard Henderson


    Does the fact that Afilias is a cartel of registrars strengthen the argument that the Registry-Registrar and Registrar-Consumer contracts are, in effect, and with Afilias's imposition of defined terms in the registrars' contracts with consumers anyway, an indication that Afilias's own terms determined the contracts with consumers, and that the two-level contract may in fact be regarded in some circumstances as one entity?


    [ Reply to This | Parent ]
    Getting "authorised officers" to enter Afilias off by Anonymous
    Re: Getting
    by Anonymous on Sunday January 05 2003, @12:22AM (#10890)
    Good luck. They will probably claim their offices are in Pennsylvania and cannot be served in Ireland. ;)
    [ Reply to This | Parent ]
    • Re: Getting by Anonymous Sunday January 05 2003, @12:53AM
      • Re: Getting by Anonymous Sunday January 05 2003, @05:16AM


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