§ 14-401.13. Failure to give right to cancel in off-premises sales. - North Carolina Statutes

§14‑401.13.  Failure to give right to cancel in off‑premises sales.

(a)        It shall be a Class3 misdemeanor for any sellers, as defined hereinafter, in connection with anoff‑premises sale, as defined hereinafter, willfully to:

(1)        Fail to furnish thebuyer with a fully completed receipt or copy of any contract pertaining to suchsale at the time of its execution, which is in the same language, e.g.,Spanish, as that principally used in the oral sales presentation and whichshows the date of the transaction and contains the name and address of theseller, and in immediate proximity to the space reserved in the contract forthe signature of the buyer or on the front page of the receipt if a contract isnot used and in boldface type of a minimum size of 10 points, a statement insubstantially the following form: "You, the buyer, may cancel thistransaction at any time prior to midnight of the third business day after thedate of this transaction. See the attached notice of cancellation form for anexplanation of this right."

(2)        Fail to furnish eachbuyer, at the time he signs the off‑premises sales contract or otherwiseagrees to buy consumer goods or services from the seller, a completed form induplicate, captioned "NOTICE OF CANCELLATION", which shall be attachedto the contract or receipt and easily detachable, and which shall contain inboldface type in a minimum size of 10 points, the following information andstatements in the same language, e.g., Spanish, as that used in the contract:

"NOTICE OF CANCELLATION

(enterdate of transaction)

                                                                        __________________________________________

(date)

Youmay cancel this transaction, without any penalty or obligation, within threebusiness days from the above date.

Ifyou cancel, any property traded in, any payments made by you under the contractor sale, and any negotiable instrument executed by you will be returned within10 business days following receipt by the seller of your cancellation noticeand any security interest arising out of the transaction will be canceled.

Ifyou cancel, you must make available to the seller at your residence, insubstantially as good condition as when received, any goods delivered to youunder this contract or sale; or you may, if you wish, comply with theinstructions of the seller regarding the return shipment of the goods at theseller's expense and risk. In the event you purchased antiques at an antiqueshow and cancel, and your residence is out‑of‑state, you mustdeliver the purchased goods to the seller.

Ifyou do make the goods available to the seller and the seller does not pick themup within 20 days of the date of your notice of cancellation, you may retain ordispose of the goods without any further obligation. If you fail to make thegoods available to the seller, or if you agree to return the goods to theseller and fail to do so, then you remain liable for performance of allobligations under the contract.

Tocancel this transaction, mail or deliver a signed and dated copy of thiscancellation notice, or any other written notice, or send a telegram, to

                                                                        __________________________________________

(nameof seller)

at____________________________________

                                                      (addressof seller's place of business)

notlater than midnight of _____________________

                                                                                                                  (date)

Ihereby cancel this transaction.

_______________

(date)

                                                                        __________________________________________ "

                                                                                          (buyer'ssignature)

(3)        Fail, beforefurnishing copies of the "Notice of Cancellation" to the buyer, tocomplete both copies by entering the name of the seller, the address of theseller's place of business, the date of the transaction, and the date, notearlier than the third business day following the date of the transaction, bywhich the buyer may give notice of cancellation.

(4)        Fail to inform eachbuyer orally, at the time he signs the contract or purchases the goods orservices, of his right to cancel.

(5)        Misrepresent in anymanner the buyer's right to cancel.

(b)        Regardless of theseller's compliance or noncompliance with the requirements of the precedingsubsection, it shall be a Class 3 misdemeanor for any seller, as definedhereinafter, to willfully fail or refuse to honor any valid notice of cancellationby a buyer and within 10 business days after the receipt of such notice, to (i)refund all payments made under the contract or sale; (ii) return any goods orproperty traded in, in substantially as good condition as when received by theseller; (iii) cancel and return any negotiable instrument executed by the buyerin connection with the contract or sale and take any action necessary orappropriate to terminate promptly any security interest created in thetransaction. If the seller failed to provide a form Notice of Cancellation tothe buyer, then oral notice of cancellation by the buyer is sufficient forpurposes of this subsection.

(c)        For the purposes ofthis section, the following definitions shall apply:

(1)        Off‑PremisesSale. – A sale, lease, or rental of consumer goods or services with a purchaseprice of twenty‑five dollars ($25.00) or more, whether under single ormultiple contracts, in which the seller or his representative personallysolicits the sale, including those in response to or following an invitation bythe buyer, and the buyer's agreement or offer to purchase is made at a placeother than the place of business of the seller. The term "off‑premisessale" does not include a transaction:

a.         Made pursuant toprior negotiations in the course of a visit by the buyer to a retail businessestablishment having a fixed permanent location where the goods are exhibitedor the services are offered for sale on a continuing basis; or

b.         In which theconsumer is accorded the right of rescission by the provisions of the ConsumerCredit Protection Act (15 U.S.C. 1635) or regulations issued pursuant thereto;or

c.         In which the buyerhas initiated the contact and the goods or services are needed to meet a bonafide immediate personal emergency of the buyer, and the buyer furnishes theseller with a separate dated and signed personal statement in the buyer'shandwriting describing the situation requiring immediate remedy and expresslyacknowledging and waiving the right to cancel the sale within three businessdays; or

d.         Conducted andconsummated entirely by mail or telephone; and without any other contactbetween the buyer and the seller or its representative prior to delivery of thegoods or performance of the services; or

e.         In which the buyerhas initiated the contact and specifically requested the seller to visit hishome for the purpose of repairing or performing maintenance upon the buyer'sproperty. If in the course of such a visit, the seller sells the buyer theright to receive additional services or goods other than replacement partsnecessarily used in performing the maintenance or in making the repairs, thesale of those additional goods or services would not fall within thisexclusion; or

f.          Pertaining to thesale or rental of real property, to the sale of insurance or to the sale ofsecurities or commodities by a broker‑dealer registered with theSecurities and Exchange Commission; or

g.         Executed at anauction; or

h.         Sales of motorvehicles defined in G.S. 20‑286(10) by motor vehicle sales representativeslicensed pursuant to G.S. 20‑287 et seq.

(2)        Consumer Goods orServices. – Goods or services purchased, leased, or rented primarily forpersonal, family, or household purposes, including courses of instruction ortraining regardless of the purpose for which they are taken.

(3)        Seller. – Anyperson, partnership, corporation, or association engaged in the off‑premisessale of consumer goods or services. However, a nonprofit corporation orassociation, or member or employee thereof acting on behalf of such anassociation or corporation, shall not be a seller within the meaning of thissection.

(4)        Place of Business. –The main or permanent branch office or local address of a seller.

(5)        Purchase Price. –The total price paid or to be paid for the consumer goods or services,including all interest and service charges.

(6)        Business Day. – Anycalendar day except Sunday, or the following business holidays: New Year's Day,Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day,Veterans' Day, Thanksgiving Day, Christmas Day, and Good Friday. (1985,c. 652, s. 1; 1987, c. 551, ss. 1, 2; 1993, c. 141, c. 539, s. 282; 1994, Ex.Sess., c. 24, s. 14(c).)