HC Deb 08 May 1970 vol 801 cc778-83

Amendment made: No. 21, in page 2, line 37, leave out from beginning to end of line 10 on page 3 and insert: 'acquire' includes hire; 'send ' includes deliver, and sender' shall be construed accordingly; 'unsolicited ' means, in relation to goods sent to any person, that they are sent without any prior request made by him or on his behalf.

Mr. Arthur Davidson

I beg to move Amendment No. 23, in page 3, line 10, at end insert: (2) For the purposes of this Act any invoice or similar document stating the amount of any payment, and not stating as prominently (or more prominently) that no claim is made to the payment, shall be regarded as asserting a right to the payment.

1.45 p.m.

As the Bill stands, the provisions of Clause 2(1) of the draft directory clauses relate to demands for payment. The purpose of the Amendment is to extend the criminal provision to cover communications which, though not specifically making a demand or asserting a right, nevertheless state the amount of a payment in such a way as to make that payment appear to be required. The most obvious example of such a communication is the simple invoice. In theory, this is merely a list of the designation and prices of goods despatched. However, most people regard an invoice as a demand for payment.

The ignorance and innocence of the public has been exploited by various firms, particularly in regard to trade directories. They send out documents marked "invoice" in the hope that recipients will assume that they are a demand for payment for entries in the directory which they think have already been ordered and will pay up. The purpose of the Amendment is to make sure that firms are not able to get round the provisions of the Bill.

Amendment agreed to.

Mr. Blaker

I beg to move Amendment No. 24, in page 3, line 10 at end insert: (2) Where a person offers to send goods without obligation to the recipient the acceptance of such offer shall not be deemed a request for the purposes of this section.

Mr. Deputy Speaker

With this Amendment, it might be convenient to take Amendment No. 26, in line 23 at end insert: (4) Where a person offers to send goods without obligation to the recipient the acceptance of such offer shall not be deemed a request or order for the purposes of the definition of unsolicited goods contained in subsection (1) of this section.

Mr. Blaker

This Amendment proposes that where a person offers to send goods without obligation to the recipient the acceptance of that offer shall not be deemed a request for the purposes of this Clause.

This arises out of a case which has been brought to my notice and which might have wider implications. It concerns a company in the wine and spirit trade, and, to explain it, perhaps I might read an extract from a letter which I have received. The writer said: A lady rang a member of our staff and asked him if he would like to have, without obligation, a survey of the wine and spirit industry He replied that he would, and the enclosed survey was sent with a rather tatty letter telling one that to become a subscribed one need only keep the survey for 14 days … Today an invoice was received …I rang the company concerned and spoke to a woman who was difficult about the whole matter, and, to say the least, unsatisfactory. The writer explains that the alleged survey enclosed was worthless, that it contained only information which is all available from Companies House about details relating to various companies engaged in the wine and spirit trade, that the invoice which he received after he received the alleged survey asked for a payment of £ 26, and that all the information in the alleged survey could have been obtained for a fee of something like £ 1 by a search in the Companies Registry.

The point is that the sending of the survey was preceded by a telephone call which asked if the recipient would like to receive without obligation a survey of the wine and spirit trade. As the Bill now stands, I believe that this would not be caught. The reply given by the employee of the recipient company saying that the company would like the survey would take it out of the new version of Clause 3 which deals with interpretation. That new version says that "unsolicited" means, in relation to goods sent to any person, that they are sent without any prior request made by him or on his behalf. It is clear in the case that I have cited that there was a request, even if it was only a request stimulated by a telephone call.

It appears to me that the case which has been drawn to my attention may reveal a loophole in this Measure. We are all aware that the people who perpetrate the practices that we want to stop will be alive to any possible loopholes when this Bill becomes law, and we must anticipate any possible loopholes if we can.

I ask myself whether it is possible that inertia selling companies may see the possibility of resorting to the telephone and making it a practice to contact people who are not well versed in the way of business and a knowledge of their rights, who probably are anxious to meet genuine debts and become worried if they are presented with a demand for payment as they have always been brought up to meet their obligations as they become due.

I do not stick rigidly to my choice of words. I am anxious to get across the point that, unless we adopt an Amendment of this kind, it will become the practice of firms engaged in this sort of business to inquire on the telephone whether a recipient would like to have a certain object without obligation.

Mr. Weitzman

How can the hon. Gentleman's words be construed in this way? If a firm offers to send goods without obligation and that offer is accepted, there cannot be any right or duty in the way of something owing to the person who makes the offer. He says "without obligation".

Mr. Blaker:

The hon. and learned Gentleman has made a point with which I cannot disagree. However, the practice of inertia selling is concerned with cases where people are sent goods without any obligation to pay for them. There may be other obligations, but, under existing law, they are not obliged to pay for the goods. We have been discussing this Bill with a view to protecting people who may be unaware of the full extent of their rights under existing law. If everyone understood his rights, inertia selling would pose no problem. While I see the hon. and learned Gentleman's point, it does not affect my argument.

As I have said, I am not wedded to the wording of my Amendment. We have a genuine problem in the example that I have cited. There is "a request" within the definition Clause of the Bill, and we should look at this problem seriously.

Mr. Goodhart

There will always be a somewhat grey area here, and one will never be able to say with complete satisfaction where an obligation begins to fall on the recipient of certain goods.

I am thinking particularly of photography. A number of photographers ask to photograph children without any obligation on their families to buy the pictures. They take photographs and send them to a family. They are either bought or returned. However, it happens frequently that photographs are taken and sent to the family, and the photographer does not call the following day or week. Often the photographs are left for two or three months, and then, suddenly, the photographer calls demanding that they be paid for or returned. If the family cannot find the photograph of little Susan, they are rather stuck. This can be a serious inconvenience to some people who feel that they have to pay whatever the photographer demands.

I can see that there are certain obligations both ways, but in my view it would be desirable to adopt this Amendment and thereby make it plain that the acceptance of an offer to provide a service such as taking photographs does not create any contractual obligation on the recipient of the photographs to buy them.

Mr. Weitzman

In my view, hon. Gentlemen opposite are overloading this matter. The words "without obligation" are clear. If I ask someone to send me goods without obligation, that means that I have no obligation with regard to any liability in respect of those goods. How can anyone after that charge them with being liable for goods in any way? I do not think that anything of this kind is necessary.

I appreciate the case which has been put forward, but the answer is very simple. If the person on the telephone said, "I want these goods sent to me without obligation", and anybody tried to say that he was liable for payment, the answer would be that he was not, because they were sent "without obligation".

I appreciate the hon. Gentleman's motive, but I think that he is being far too cautious in regard to this matter.

2.0 p.m.

Mrs. Gwyneth Dunwoody

I am grateful to my hon. and learned Friend because he has stated the position as I understand it.

I presume that an offer to send goods without obligation means an offer to send goods on approval or for free trial. If the goods are sent without waiting to hear whether the recipient wishes to receive them, they will be unsolicited goods anyway. The Amendments deal only with the case in which he does agree that they should be sent.

Once a person who has been offered to be sent goods without obligation accepts such an offer, he clearly has solicited the goods. If he agrees to receive them on that basis, there is no reason why the person who sends the goods, in response to such an acceptance, should be subjected to the special unfavourable regime set up for unsolicited goods. The recipient knows quite well that if he does not want the goods he must send them back in accordance with the terms on which they were sent, and that, as far as his obligation is concerned, will be the end of the matter.

As far as I can see, the obvious result of these Amendments would be to deter legitimate firms from making offers which the public might find reasonably advantageous, because it would be too complicated or even dangerous for them ever to send goods on approval.

If hon. Gentlemen opposite have in mind the possibility that the recipients of such goods without obligation might later find themselves dunned for payment, then I think that situation is basically the same as that in which the parties agree on one price and the sender then demands a higher one. Both are cases in which the sender makes a claim to which he is not entitled under the terms of his contract. In the Bill we are dealing with cases in which goods are sent where there is no contract.

I hope that hon. Gentlemen will accept that it would not be sensible to amend the Bill in the way that they are proposing.

Mr. Arthur Davidson

I fully appreciate the reasons why these Amendments have been tabled. Like the hon. Member for Blackpool, South, I am concerned that those who indulge in what can loosely be called "inertia selling" do not try to get round the provisions of the Bill. I agree that they will make skilful and perhaps expensive attempts to find a way round it. I think, however, that my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) is right in saying that hon. Gentlemen opposite are being a little over-worried in this case.

If somebody requests goods or accepts goods on the clear understanding that they are without obligation, his rights are perfectly clear: he is under no obligation to pay for them. I do not think that the Amendment would make the position any clearer than it already is. I fear that if we accepted this kind of Amendment we would be so widening the Bill that it would be getting dangerously like a doorstep-selling Bill. The same criticism could be made about people who come onto the doorstep and say, "Perhaps you would like to keep these encyclopaedias. There is no obligation on you to pay for them." The housewife, being a bit harrassed, takes them in and she may receive a demand for payment. In those circumstances, not only would we be widening the scope of the Bill unecessarily, but we would be underwriting and perhaps confusing what is already the law of contract.

In those circumstances, whilst I have a great deal of sympathy with the views put forward, I do not think that we can possibly accept the Amendment.

Amendment negatived.

Further Amendment made: No. 25, in page 3, leave out lines 11 to 23.—[Mr. Arthur Davidson.]

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