Part 4: Consumer rights and disputes Duties of traders Section 256: Pre-contract information
This section sets out the requirements of traders in relation to information that must be provided prior to the consumer entering into the contract. The pre-contract information consists of 11 items of "key pre-contract information" (in Schedule 23, Part 1) and the "full pre-contract information" (in Schedule 23, Part 2). The key information must be given to consumers for all subscription contracts, regardless of whether this information is apparent from the context. The "full pre-contract information" includes again the "key information" (paragraph 13 of Schedule 23) and additional information set out at paragraphs 14 to 28 of Schedule 23. This additional information only needs to be provided to the extent that it is applicable to the contract and not already apparent from the context. Pre-contract information must be provided in clear and plain language, in a legible form (if in writing) or in a way that is audible and comprehensible (if given orally) (section 272, subsection (8)). If the full pre-contract information is not provided in a "durable medium" before the contract is concluded, it must be provided in this format as soon as reasonably practicable afterwards (section 257, subsection (9))). (Note that where a contract is entered into "in person," both the key and full pre-contract information must be given in writing and on a durable medium before the contract is entered (section 256, subsection (3), paragraph (c) and section 256, subsection (4)).
	Subsection (1), paragraph (a) requires that before a trader enters a subscription contract the trader to give the key pre-contract information to the consumer, and paragraph (b) specifies that the full pre-contract information (set out in Part 2 of Schedule 23) must be given or made available to the consumer. There are no specific requirements as to how information is made available, as it will depend on the context and the individual product, however subsection (6) indicates that the test will be satisfied only if the consumer can reasonably be expected to know how to access the information and be able to access it. Information is unlikely to be "made available" if it is not clearly and prominently signposted or if it is obscured in some way either physically, or by being buried within lengthy documents. This may also constitute a misleading action or omission pursuant to Chapter 1 of this Part.
	Subsection 2, paragraph (a) specifies that the pre-contract information (set out in parts 1 and 2 of Schedule 23) must be provided by the trader to the consumer as close in time to the consumer entering the contract as is practicable. This means immediately before the consumer places their order and/or enters into the contract (whichever is the earlier) where possible. This applies no matter where the subscription contract is entered into (i.e. it applies to contracts concluded online, over the telephone, face-to-face or any other way). How this might look in practice might vary depending on the type of contract and the consumer journey. The key difference is whether a consumer can see and read the pre-contract information because it is presented on a durable medium or otherwise in writing (i.e. online on the trader’s website, paper) or not (i.e. telephone).
	Paragraphs (b) and (c) of subsection (2) also require that the requirements on providing pre-contract information must be carried out in accordance with subsections (3) and (4) of section 256 and any other requirements set out in regulations under section 277 subsection (1) paragraph (a).
	For a subscription contract entered into face-to-face at a business premises, the consumer’s home or elsewhere, the pre-contract information must be given to the consumer in writing (and on a durable medium), so they have an opportunity to review it prior to entering into the contract. Similarly, for an online contract, the key pre-contract information must be given to a consumer in writing before the contract is entered and the full pre-contract information must also be accessible. Where a subscription contract is to be entered into in the course of a phone call, the consumer will be relying on the verbal information communicated by the trader or his agent. In those circumstances, the key pre-contract information must be relayed orally to the consumer, and the trader must still make available the full pre-contract information before the contract is made, so that the consumer is able to consider it before going ahead with the contract.
	Subsection 3, paragraph (a) requires the key pre-contract information to be given together, as one whole set of information.
	Subsection 3, paragraph (b) requires the key pre-contract information to be given separately and distinctly from the full pre-contract information and from any other information that might relate to the product. The purpose of this requirement is to prevent the key pre-contract information being obscured or reducing its prominence.
	Generally, how traders comply with the various requirements in this section will depend on the product and the medium used to conclude contracts with consumers and communicate the prescribed information, but it should mean:
in the case of online contracts, key pre-contract information is clearly and prominently visible in the location where the consumer will enter into the contract and is directly accessible without a need for the consumer to take any further steps to access and read it;
the key pre-contract information is provided first, prominently and separate from the full pre-contract information;
the pre-contract information should not be obscured by the addition of other information which may compete for the consumer’s attention;
all the pre-contract information should be easily understood by the average consumer; and
all the pre-contract information should be presented in such a way as to come to the consumer’s attention so as to enable the consumer to easily identify and read the information; in an appropriate font, size, colour and position.
	Subsection (3), paragraph (c) requires that where the contract is entered into in the simultaneous presence of the trader and the consumer, the key pre-contract information must be provided in writing and on a durable medium. In respect of durable medium that means a format (such as paper or email) which allows information to be addressed personally to the consumer and allows a consumer to easily store under their control and refer to if needed (see section 280 for the definition of durable medium). However, that does not mean the onus should be on a consumer to save a web page or print off a copy for their records. A mere provision of information on a website does not constitute durable medium.
	Specific conditions relating to whether information provided via a website will qualify as durable medium include:
whether the website allows the consumer to store information addressed to her/him personally in such a way that s/he may access it and reproduce it unchanged for an adequate period, without any unilateral modification of its content by the service provider or by another trader being possible; and
if the consumer is obliged to consult that website in order to become aware of the information, the transmission of that information must be accompanied by behaviour on the part of the provider aimed at drawing the consumer’s attention to the existence and availability of that information on that website.
	Subsection (3), paragraph (d) means that during the process towards completing the online purchase the consumer should see the written key pre-contract information at least once and is not required to take any further action, such as click on links or download separate documents, to access the information. To comply with the requirements, it should not be possible for the consumer to navigate e.g. a website ordering process, without seeing all of the key pre-contract information prior to being able to complete a purchase.
	In the situation covered by subsection (3) paragraph (e) where it is not possible to provide the key pre-contract information in writing prior to the point of purchase, it must be relayed orally to the consumer. Where the information provided is spoken rather than written, it must be audible, clear and spoken at a pace that enables the consumer to fully understand all the information provided. The trader must still make available the full pre-contract information before the contract is made. One way the trader could do this is to refer the consumer to a webpage, or written document previously sent to the consumer, where the full pre-contract information is set out.
	Subsection (4) provides that the full pre-contract information must be made available or given together; the consumer should be able to view that information in one place. However, this duty only applies to the additional information set out in paragraphs 14 to 28 of Schedule 23 when this information is applicable to contract and not already apparent from the context (subsection (5)). The requirements for the information to be given in writing and on a durable medium for contracts entered into in person under subsection (4), paragraph (b) are the same as those under subsection (3), paragraph (c).
	The Secretary of State may by regulations amend Parts 1 and 2 of Schedule 23 so as to add, modify or remove descriptions of information. Subsection (9) provides that regulations made under this subsection (8) are subject to the draft affirmative procedure.