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90_HB3321
815 ILCS 505/1 from Ch. 121 1/2, par. 261
815 ILCS 505/2B from Ch. 121 1/2, par. 262B
Amends the Consumer Fraud and Deceptive Business
Practices Act. Provides that where a sale of merchandise is
made to a consumer by a seller pursuant to a home
solicitation sale (now a seller who is physically present at
the consumer's residence), the consumer may avoid the
contract or transaction by notifying the seller within 3 full
business days. Defines "home solicitation sale".
LRB9011390MWpc
LRB9011390MWpc
1 AN ACT to amend the Consumer Fraud and Deceptive Business
2 Practices Act by changing Sections 1 and 2B.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Consumer Fraud and Deceptive Business
6 Practices Act is amended by changing Sections 1 and 2B as
7 follows:
8 (815 ILCS 505/1) (from Ch. 121 1/2, par. 261)
9 Sec. 1. Definitions.
10 (a) The term "advertisement" includes the attempt by
11 publication, dissemination, solicitation or circulation to
12 induce directly or indirectly any person to enter into any
13 obligation or acquire any title or interest in any
14 merchandise and includes every work device to disguise any
15 form of business solicitation by using such terms as
16 "renewal", "invoice", "bill", "statement", or "reminder", to
17 create an impression of existing obligation when there is
18 none, or other language to mislead any person in relation to
19 any sought after commercial transaction. ;
20 (b) The term "merchandise" includes any objects, wares,
21 goods, commodities, intangibles, real estate situated outside
22 the State of Illinois, or services. ;
23 (c) The term "person" includes any natural person or his
24 legal representative, partnership, corporation (domestic and
25 foreign), company, trust, business entity or association, and
26 any agent, employee, salesman, partner, officer, director,
27 member, stockholder, associate, trustee or cestui que trust
28 thereof. ;
29 (d) The term "sale" includes any sale, offer for sale,
30 or attempt to sell any merchandise for cash or on credit.
31 (e) The term "consumer" means any person who purchases
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1 or contracts for the purchase of merchandise not for resale
2 in the ordinary course of his trade or business but for his
3 use or that of a member of his household.
4 (f) The terms "trade" and "commerce" mean the
5 advertising, offering for sale, sale, or distribution of any
6 services and any property, tangible or intangible, real,
7 personal or mixed, and any other article, commodity, or thing
8 of value wherever situated, and shall include any trade or
9 commerce directly or indirectly affecting the people of this
10 State.
11 (g) The term "pyramid sales scheme" includes any plan or
12 operation whereby a person in exchange for money or other
13 thing of value acquires the opportunity to receive a benefit
14 or thing of value, which is primarily based upon the
15 inducement of additional persons, by himself or others,
16 regardless of number, to participate in the same plan or
17 operation and is not primarily contingent on the volume or
18 quantity of goods, services, or other property sold or
19 distributed or to be sold or distributed to persons for
20 purposes of resale to consumers. For purposes of this
21 subsection, "money or other thing of value" shall not include
22 payments made for sales demonstration equipment and materials
23 furnished on a nonprofit basis for use in making sales and
24 not for resale.
25 (h) "Home solicitation sale" means a consumer credit
26 sale of goods or services, except the sale of real property
27 or an interest in real property or the sale of personal
28 property that is incidental to a sale of real property or an
29 interest in real property, in which the seller, or a person
30 acting for the seller, engages the consumer in a personal
31 solicitation of the sale at the residence of the consumer and
32 the consumer's agreement to the sale or offer to purchase is
33 given to the seller, or a person acting for the seller, at
34 the residence. "Home solicitation sale" does not include a
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1 sale made pursuant to a preexisting revolving charge account
2 or a sale made pursuant to prior negotiations between the
3 seller and the consumer at a business establishment at a
4 fixed location where goods or services are offered or
5 exhibited for sale.
6 (Source: P.A. 83-808.)
7 (815 ILCS 505/2B) (from Ch. 121 1/2, par. 262B)
8 Sec. 2B. Where a sale of merchandise involving $25 or
9 more is made or contracted to be made whether under a single
10 contract or under multiple contracts, to a consumer by a
11 seller pursuant to a home solicitation sale who is physically
12 present at the consumer's residence, that consumer may avoid
13 the contract or transaction by notifying the seller within 3
14 full business days following that day on which the contract
15 was signed or the sale was made and by returning to the
16 person, in its original condition, any merchandise delivered
17 to the consumer under the contract or sale. At the time the
18 transaction is made or the contract signed, the person shall
19 furnish the consumer with a fully completed receipt or
20 contract pertaining to the transaction, in substantially the
21 same language as that principally used in the oral
22 presentation to the consumer, containing a "Notice of
23 Cancellation" informing the consumer that he may cancel the
24 transaction at any time within 3 days and showing the date of
25 the transaction with the name and address of the person, and
26 in immediate proximity to the space reserved in the contract
27 for the consumer's signature or on the front page of the
28 receipt if a contract is not used, a statement which shall be
29 in bold face type, in at least 10-point type and in
30 substantially the following form:
31 "YOU, THE CONSUMER, MAY CANCEL THIS TRANSACTION AT ANY
32 TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE
33 DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF
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1 CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT."
2 Attached to the receipt or contract shall be a completed
3 form in duplicate, captioned "NOTICE OF CANCELLATION" which
4 shall be easily detachable and which shall contain in 10
5 point bold face type the following information and statements
6 in the same language as that used in the contract:
7 NOTICE OF CANCELLATION
8 (enter date of transaction)
9 ...........................
10 (Date)
11 YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR
12 OBLIGATION, WITHIN 3 BUSINESS DAYS FROM THE ABOVE DATE.
13 IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE
14 BY YOU, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU UNDER
15 THE CONTRACT OR TRANSACTION WILL BE RETURNED WITHIN 10
16 BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR
17 CANCELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF
18 THE TRANSACTION WILL BE CANCELLED.
19 IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT
20 YOUR RESIDENCE IN SUBSTANTIALLY AS GOOD A CONDITION AS WHEN
21 RECEIVED, ANY GOODS DELIVERED TO YOU UNDER THIS CONTRACT OR
22 TRANSACTION, OR YOU MAY IF YOU WISH, COMPLY WITH THE
23 INSTRUCTIONS OF THE SELLER REGARDING THE RETURN SHIPMENT OF
24 THE GOODS AT THE SELLER'S EXPENSE AND RISK.
25 IF YOU MAKE THE GOODS AVAILABLE TO THE SELLER AND THE
26 SELLER DOES NOT PICK THEM UP WITHIN 20 DAYS OF THE DATE OF
27 YOUR NOTICE OF CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE
28 GOODS WITHOUT ANY FURTHER OBLIGATION. IF YOU FAIL TO MAKE
29 THE GOODS AVAILABLE TO THE SELLER, OR IF YOU AGREE TO RETURN
30 THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN YOU REMAIN
31 LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT.
32 TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND
33 DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN
34 NOTICE, OR SEND A TELEGRAM, TO (Name of seller), AT (address
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1 of seller's place of business) NOT LATER THAN MIDNIGHT OF
2 (date).
3 I HEREBY CANCEL THIS TRANSACTION.
4 (Date) ............
5 ...................
6 (Buyer's signature)
7 Such written "Notice of Cancellation" may be sent by the
8 consumer to the person to cancel the contract. The 3 day
9 period provided for in this Section does not commence until
10 the consumer is furnished a "Notice of Cancellation", and the
11 address at which such notice to the seller can be given. If
12 those conditions are met, the seller must return to the
13 consumer the full amount of any payment made or consideration
14 given under the contract or for the merchandise. It is an
15 unlawful practice within the meaning of this Act for any
16 person to
17 (a) Fail, before furnishing copies of the "Notice of
18 Cancellation" to the consumer, to complete the copies by
19 entering the name of the person, the address of the person's
20 place of business, the date of the transaction, and the date,
21 not earlier than the third business day following the date of
22 the transaction, by which the consumer may give notice of
23 cancellation;
24 (b) Include in any contract or receipt under this
25 Section any confession of judgment or any waiver of any of
26 the rights to which the consumer is entitled under this
27 Section including specifically his right to cancel the
28 transaction in accordance with the provisions of this
29 Section;
30 (c) Fail to inform each consumer orally, at the time he
31 signs the contract or purchases or leases the goods or
32 services, of his right to cancel;
33 (d) Misrepresent in any manner the consumer's right to
34 cancel;
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1 (e) Use any undue influence, coercion or any other
2 wilful act or representation to interfere with the consumer's
3 exercise of his rights under this Section;
4 (f) Fail or refuse to honor any valid notice of
5 cancellation by a consumer and within 10 business days after
6 the receipt of such notice, to
7 (i) refund all payments made under the contract or sale,
8 (ii) return any goods or property traded in, in
9 substantially as good a condition as when received by the
10 person, or
11 (iii) cancel and return any negotiable instrument
12 executed by the consumer in connection with the contract or
13 transaction and take any action necessary or appropriate to
14 terminate promptly any security interest created in the
15 transaction;
16 (g) Negotiate, transfer, sell, or assign any note or
17 other evidence of indebtedness to a finance company or other
18 third party prior to midnight of the fifth business day
19 following the day the contract was signed or the goods or
20 services were purchased or leased; or
21 (h) Fail, within 10 business days of receipt of the
22 consumer's notice of cancellation, to notify him whether the
23 seller intends to repossess or to abandon any shipped or
24 delivered goods.
25 For the purposes of this Section, the word "sale"
26 includes a sale, lease or rental.
27 This Section does not apply to any transaction
28 (a) made pursuant to prior negotiations in the course of
29 a visit by the consumer to a retail business establishment
30 having a fixed permanent location where the goods are
31 exhibited, or the services are offered, for sale or lease on
32 a continuing basis;
33 (b) in which the consumer is accorded the right of
34 rescission by the provisions of the Consumer Credit
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1 Protection Act (15 U.S.C. 1635) or regulations issued
2 pursuant thereto;
3 (c) in which the consumer has initiated the contact and
4 the goods or services are needed to meet a bona fide
5 immediate personal emergency of the consumer, and the
6 consumer furnishes the person with a separate dated and
7 signed personal statement in the consumer's handwriting
8 describing the situation requiring immediate remedy and
9 expressly acknowledging and waiving the right to cancel the
10 sale within 3 business days;
11 (d) conducted and consummated entirely by mail or
12 telephone without any other contact between the consumer and
13 the person or its representative prior to delivery of the
14 goods or performance of the services;
15 (e) in which the consumer has initiated the contact and
16 specifically requested the person to visit his home for the
17 purpose of repairing or performing maintenance upon the
18 consumer's personal property, on the condition that if, in
19 the course of such a visit, the person sells the consumer the
20 right to receive additional services or goods other than
21 replacement parts necessarily used in performing the
22 maintenance or in making the repairs, the sale of those
23 additional goods or services does not fall within this
24 exclusion; or
25 (f) pertaining to the sale or rental of real
26 property, to the sale of insurance or to the sale
27 of securities or commodities by a broker-dealer
28 registered with the Securities and Exchange Commission.
29 (Source: P.A. 86-898.)