PART VIII

Provisions Relating to Moneylending

92. —This Part shall apply to moneylending agreements or to any transaction which, whatever its form may be, is substantially one of moneylending.

93. —(1) The Director, having considered any objection to the granting of a licence, may grant to a person a licence (“a moneylender's licence”) upon such terms and conditions as he sees fit authorising that person to engage in the business of moneylending in any district court district or in any particular district or part thereof upon application to the Director in that behalf.

(2) A person who intends to apply to the Director for a moneylender's licence shall before making such application cause to be published, in any national or local newspaper published in the State and circulating in the district court district that the applicant intends to engage or engages in the business of moneylending, notice of his intention.

(3) (a) An application for a moneylender's licence shall be in writing and in such form as the Director may determine and shall contain—

(i) the true name and the business name (if any) of the applicant,

(ii) the name under which the applicant intends to engage in or engages in the business of moneylending,

(iii) the address of any premises in which the applicant proposes to engage or engages in the business of moneylending,

(iv) an itemised statement of the proposed total cost of credit,

(v) details of collection and all other charges not included therein,

(vi) details of the applicant's terms and conditions,

(vii) the name of any district court district in which the applicant proposes to engage or engages in the business of moneylending,

(viii) a copy of any advertisement placed by the applicant as required under subsection (2),

(ix) such other information as the Director may reasonably require.

(b) An application for a moneylender's licence shall be accompanied by—

(i) a fee of £1,000 for the applicant to engage in the business of moneylending in one district court district, and

(ii) a further fee of £500 in respect of each additional district court district in which the applicant proposes to engage in the business of moneylending.

(4) The fees referred to in subsection (3) may be varied by regulations.

(5) The fees referred to in subsection (3) shall not be refundable in whole or in part save at the discretion of the Director.

(6) A person shall not wilfully give any information which is false or misleading in respect of an application for a moneylender's licence.

(7) A moneylender's licence shall be valid for the period of 12 months commencing on the date specified therein and shall expire at the end of that period.

(8) A moneylender's licence shall state—

(a) the true name and business name (if any) of the holder,

(b) the name under which the holder is authorised by the licence to engage in the business of moneylending,

(c) the address of the business premises of the holder, and

(d) the district court district or districts in which the holder is authorised to engage in the business of moneylending in respect of which the licence is granted,

(e) an itemised statement of the APR to be charged in relation to moneylending agreements by the holder,

(f) details of collection and other charges not included therein,

(g) statement of the licence holder's terms and conditions, and

(h) any restrictions to the licence.

(9) The holder of a moneylender's licence shall only engage in the business of moneylending in the name specified in the holder's licence.

(10) The Director may refuse to grant a moneylender's licence on one or more of the following grounds that:

(a) the applicant or any business with which he was connected was, during the previous 5 years, convicted of an offence for contravening section 98 ,

(b) the Circuit Court has, during the previous 2 years, decided pursuant to section 47 in relation to an agreement between the applicant and a consumer that the total cost of credit was excessive,

(c) the applicant is the holder of—

(i) a bookmaker's licence issued under the Betting Act, 1931 ,

(ii) a licence for the sale of intoxicating liquor granted under the Licensing Acts, 1833 to 1994,

(iii) a gaming licence issued under the Gaming and Lotteries Act, 1956 , or

(iv) a pawnbroker's licence granted under the Pawnbrokers Act, 1964 , as amended by this Act,

(d) the applicant has failed to provide a current Revenue tax clearance certificate in respect of himself or his business,

(e) the applicant or any person responsible or proposed to be responsible for the management of his business in relation to moneylending is by order of a court disqualified from holding a licence,

(f) the applicant is not or is no longer, in the opinion of the Director, a fit and proper person to carry on the business of moneylending,

(g) in the Director's opinion, the cost of credit to be charged is excessive or any of the terms or conditions attaching thereto are unfair, or

(h) in the case of an application for a second or subsequent moneylender's licence, the applicant did not engage in the business of moneylending according to the terms or conditions of the previous licence.

(11) The Director may—

(a) suspend or revoke a moneylender's licence, or

(b) vary the terms or conditions of a moneylender's licence,

if he is satisfied that, since becoming the holder of a moneylender's licence, a moneylender or any business with which he is connected has been convicted of an offence for contravening section 98 or a moneylender has become the holder of a licence referred to in subsection (10) (c) or has failed to comply with any of the terms or conditions of the licence.

(12) Whenever the Director proposes to refuse to grant, suspend, revoke or vary the terms or conditions of a moneylender's licence he shall notify the applicant or the holder of the licence, as the case may be, of his proposal and shall, if any representations are made to him in writing by such applicant or holder within 14 days of the notification, consider the representations.

(13) Whenever the Director, having considered any representations that may have been made under subsection (12), decides to refuse to grant, suspend, revoke or vary any term or condition of a moneylender's licence, he shall notify the applicant for, or as the case may be, the holder of, the licence of the decision and the grounds for such decision and such applicant or holder may within 7 days of receipt of notification appeal against such decision to the judge of the Circuit Court within whose Circuit the business of moneylending to which the licence relates is to be carried on.

(14) A notification referred to in subsection (12) or (13) shall be delivered personally or sent by pre-paid registered post to the business address of the applicant for a moneylender's licence or the holder of the moneylender's licence concerned, as the case may be.

(15) Where a notification under subsection (12) or (13) relates to a refusal to grant a second or subsequent moneylender's licence or a suspension or revocation of a moneylender's licence or the variation of the terms or conditions of a moneylender's licence, the refusal, suspension, revocation or variation shall take effect upon the expiration of the 7 days allowed for the appeal.

(16) Where an appeal is made under subsection (13) by an applicant for a second or subsequent moneylender's licence in respect of a refusal to grant such licence or by a holder of a moneylender's licence in respect of a suspension, revocation or variation of the terms or conditions of a moneylender's licence, the refusal, suspension, revocation or variation shall stand suspended until the appeal is determined or withdrawn and notwithstanding subsection (7) any moneylender's licence held by the applicant at the time of the appeal shall continue in force until the determination or withdrawal of the appeal.

(17) On the hearing of an appeal under subsection (13) in relation to a decision of the Director to refuse to grant, suspend, revoke or vary the terms or conditions of, a moneylender's licence, the Circuit Court may either confirm the decision or allow the appeal and, where an appeal is allowed, the Director shall grant the licence or shall not suspend, revoke or vary the terms or conditions of the licence, as the case may be.

(18) A decision of the Circuit Court on an appeal under subsection (13) shall be final save that, by leave of the Court, an appeal from the decision shall lie to the High Court on a specified question of law.

(19) In an appeal under subsection (13) the Director shall not be awarded or ordered to pay costs.

94. —The holder of a moneylender's licence shall display in a prominent position an authorised copy of the licence and any terms or conditions attached thereto in any premises where the holder engages in the business of moneylending.

95. —A moneylender shall ensure that any moneylending agreement to which he is a party shall contain in a prominent position the words “Moneylending agreement”.

96. —(1) A person, other than the Director or an officer of the Director acting on behalf of the Director, shall not alter or attempt to alter a moneylender's licence or an authorised copy thereof.

(2) A person shall not falsify or attempt to falsify a moneylender's licence or an authorised copy thereof.

97. —(1) A holder of a moneylender's licence shall issue, in writing and in such form as may be specified by the Director, to any person engaging in the business of moneylending on his behalf, at a place other than a business premises of the holder used for moneylending, authorisation to so engage, signed by or on behalf of the licence holder.

(2) An authorisation issued under subsection (1) shall cease to have effect should the moneylender who issued it cease to be the holder of a moneylender's licence.

(3) A person shall not engage in the business of moneylending on behalf of the holder of a moneylender's licence at a place other than the business premises of the holder unless he holds an authorisation issued under subsection (1).

(4) A person shall not alter, deface or falsify or attempt to alter, deface or falsify an authorisation issued under subsection (1).

(5) In any proceedings for an offence for contravening subsection (3) it shall be a defence for the accused to show that he had reasonable grounds to believe that any authorisation issued to him to engage in moneylending on behalf of a moneylender was bona fide issued under this section and in force.

98. —(1) A person shall not engage in the business of moneylending on his own behalf unless—

(a) he is the holder of a moneylender's licence, and

(b) he maintains a business premises for that purpose which is not used as a residence by any person.

(2) A person shall not engage in the business of moneylending on behalf of a moneylender who is not the holder of a moneylender's licence.

(3) Where a member of the Garda Síochána has reasonable cause to suspect that a person in a public place is engaging in the business of moneylending in contravention of this section, the member may, without warrant, stop, question, search (if need be by force) and remove from that person any documents or money which the member reasonably believes may be in that person's possession for the purpose of moneylending.

(4) A person shall not obstruct or interfere with a member of the Garda Síochána acting under subsection (3) or give to a member information which is false or misleading.

(5) A person shall comply with any request made of him by a member of the Garda Síochána under subsection (3).

(6) In this section “public place” means any place to which the public have access whether as of right or by permission and whether subject to or free of charge; and the doorways, entrances and gardens abutting onto a public place and any ground or car-park adjoining and open to a public place shall be treated as forming part of a public place.

99. —Where credit is made available to a borrower by means of a moneylending agreement that credit shall not be reduced by the moneylender or a person acting on his behalf by any amount in respect of:

(a) repayment of the credit or any charges related thereto, or

(b) repayment of a previous credit or any charge related thereto,

and no payment in respect of the credit shall be required of the borrower by the moneylender or a person acting on his behalf before the due date of the first repayment instalment.

100. —(1) A moneylender shall, in respect of every moneylending agreement, supply to the borrower a book or document (“repayment book”) in which to record repayments made under the agreement which shall be completed and maintained by the moneylender in accordance with this section and shall be separate from the agreement.

(2) (a) A moneylender shall, in respect of a moneylending agreement, enter in a repayment book before supplying it to a borrower the following information:

(i) an agreement number or other reference to enable the agreement to be identified,

(ii) the name and address of the moneylender (as specified on his moneylender's licence),

(iii) the name and address of the borrower,

(iv) the amount of the credit being advanced,

(v) the date the credit is advanced,

(vi) the amount of each repayment instalment,

(vii) the rate of interest to be charged (including the APR expressed as £ per £100 borrowed) on foot of the credit advanced,

(viii) the amount of each collection charge (if any),

(ix) the number of repayment instalments,

(x) the date, or the mode of determining the date, upon which each repayment instalment is payable,

(xi) the total amount payable in respect of the loan, and

(xii) the date of expiry of the loan.

(b) A repayment book shall also include a record of repayments in the form set out in the Sixth Schedule and in which, on the occasion of each repayment, the person to whom the repayment is made shall enter the following:

(i) the date the repayment is made,

(ii) the amount of the repayment,

(iii) the amount still outstanding after deduction of the repayment, and

(iv) the signature of the person to whom the repayment is made.

101. —(1) A moneylender shall, in respect of every moneylending agreement, made after the commencement of this section, to which the moneylender is a party, keep a record of the agreement which shall include the following information:

(a) the agreement number or other reference to identify the agreement,

(b) the name and address of the borrower,

(c) the amount of the credit advanced under the agreement,

(d) the date the credit is advanced,

(e) the amount of each repayment instalment,

(f) the rate of interest charged including the APR,

(g) the amount of each collection charge (if any),

(h) the number of instalments,

(i) the total amount payable in respect of the loan, and

(j) a Schedule showing, in respect of each repayment—

(i) the date the repayment is made,

(ii) the amount of the repayment,

(iii) the amount still outstanding after deduction of the repayment, and

(iv) the name of the person to whom the repayment is made.

(2) A moneylender shall retain a record kept under subsection (1) for a period of not less than 5 years after the final repayment instalment under the agreement.

(3) A moneylender or a person acting on his behalf shall not reveal to any person other than to the borrower concerned or a person authorised by the borrower, a court, the Minister, the Director or any authorised officer any of the contents of records maintained by him under this section.

102. —(1) A moneylender shall not make or attempt to make an agreement with a borrower who has borrowed or intends to borrow credit from that moneylender for any sum (other than a collection charge), account of costs, charges or expenses incidental to or relating to the negotiations for, or the granting of, the loan.

(2) If any sum is paid by a borrower who has borrowed or intends to borrow credit from a moneylender for or on account of such costs, charges or expenses that sum shall be recoverable as a debt due to the borrower, or in the event of the loan being completed, shall, if not so recovered, be set off against the amount actually lent and that amount shall be deemed to be reduced accordingly.

103. —(1) Where the amount payable under a moneylending agreement includes a collection charge in respect of the payment of repayments at a location other than the business premises of the moneylender, the agreement shall include the following:

(a) a clear indication of the amount of that charge,

(b) a statement that the borrower shall have the option of making the repayment at the business premises of the moneylender,

(c) a statement that if the borrower exercises the option, the charge will not be payable, and

(d) a statement that the borrower may indicate his unwillingness to avail of the option by signing a statement to this effect which has been explained to the borrower in a manner specified by the Director, this signature to be additional to the borrower's signature in relation to any of the terms of the agreement.

(2) A moneylender shall ensure that any moneylending agreement entered into with him complies with this section.

104. —Where in a prosecution for a contravention of this Part it is shown to a court that the accused had in his possession or control any document or sum of money in circumstances which give rise to the reasonable inference that such documents or money were kept for the purpose of moneylending, it shall be presumed, unless the contrary is shown, that the accused, at the time of such possession or control, was engaged in the business of moneylending.

105. —(1) A member of the Garda Síochána may enter a premises (if need be by reasonable force) at which there are reasonable grounds to suspect that the premises or part of the premises (other than a dwelling) is being used for the purposes of moneylending contrary to this Part or that evidence of an offence for contravening this Part may be found in such premises, and may search and inspect the premises and search and question any person found thereon and may seize and retain any document, money or thing which the member has reason to believe may be evidence of the commission of an offence for contravening this Part.

(2) A member of the Garda Síochána who enters a premises under subsection (1) may exercise any of the powers conferred on an authorised officer under section 7 .

(3) A person shall not obstruct or interfere with a member of the Garda Síochána acting under this section or give any information which is false or misleading.

(4) A person shall comply with any requirement made of him by a member of the Garda Síochána under this section.

106. —(1) If a judge of the District Court is satisfied on the sworn information of a member of the Garda Síochána that there are reasonable grounds for suspecting that any premises or any part of any premises is being used for the purposes of moneylending contrary to the provisions of this Part or that evidence of an offence for contravening this Part may be found in such premises, the judge may issue a warrant authorising any member of the Garda Síochána, accompanied by other members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter, if need be by force, and search the premises and any person found therein and question any such person and seize and retain any document or thing which such member has reason to believe may be evidence of the commission of an offence for contravening this Part and arrest any such person who the member has reason to believe has contravened any provision of this Part.

(2) A person shall not obstruct or interfere with a member of the Garda Síochána acting under the authority of a warrant under subsection (1) or give to a member information which is false or misleading.

(3) A person shall comply with any request made of him by a member of the Garda Síochána acting under the authority of a warrant under subsection (1).

107. —(1) A person shall not have in his possession or control for the purposes of moneylending any document belonging to another person.

(2) Where a member of the Garda Síochána has reasonable cause to suspect that a person is in possession or control of a document in contravention of subsection (1), the member may without warrant, stop and search (if need be by force) the person and seize the document.

(3) A person shall not obstruct or interfere with a member of the Garda Síochána acting under subsection (2).

(4) In this section “document” includes every book, card, order, voucher or other document issued to any person.

108. —(1) Where a member of the Garda Síochána has reasonable cause to suspect that a person is engaged in the business of money-lending he may require that person to produce his moneylender's licence or authorisation issued under section 97 .

(2) A person shall not obstruct or interfere with a member of the Garda Síochána acting under subsection (1) and shall comply with any requirement made of him under that subsection.

109. —(1) If a member of the Garda Síochána has reasonable cause to suspect that a person has contravened this section, section 98 , section 107 or 108 , the member may—

(a) arrest that person without warrant, or

(b) require the person to give his name and address and, if the person fails or refuses to do so or gives a name or address that member reasonably suspects to be false or misleading, the member may arrest that person without warrant.

(2) A person shall not refuse to give his name or address when required under subsection (1), or give a name or address which is false or misleading.

110. —(1) A person shall not engage in the business of collecting repayments whether personally or by his employee or agent—

(a) subject to subsection (2), between the hours of 9 o'clock in the evening on any week day and 10 o'clock in the morning on the following day, or

(b) at any time on a Sunday or a public holiday (within the meaning of the Holidays (Employees) Act, 1973 ).

(2) Where the borrower has given his consent in writing, separate from any other document, in the form set out in the Seventh Schedule or such other form as may be prescribed, a moneylender may engage in the collection of repayments whether personally or by his employee or agent between the hours of 8 o'clock and 10 o'clock in the morning on any week day.

(3) A copy of a consent under subsection (2) shall be—

(a) handed personally to the borrower upon giving such consent, or

(b) sent to the borrower within 10 days of giving such consent, by the moneylender or his employee or agent.

(4) A borrower may withdraw any consent given by him under subsection (2) by notifying the moneylender, his employee or agent and, accordingly, any such consent shall be terminated upon receipt of such notification.

111. —A person on the occasion that a cash advance is made to a borrower under a money lending agreement, shall not sell or offer for sale any goods to that borrower.

112. —A moneylending agreement shall be unenforceable against the borrower if it provides that the rate of charge for the credit may be increased or that any additional charge, other than legal costs, may apply in the event of a default in the payments due under the agreement.

113. —Any moneylender's licence granted by the Revenue Commissioners under section 5 of the Moneylenders Act, 1933 (repealed by section 19 ) that is in force immediately before the commencement of section 93 shall continue in force after such commencement for the remainder of the period that such licence was so granted as if it had been granted by the Director under section 93 and that section shall be construed accordingly.

114. —The Minister may prescribe that a person or class of persons shall not be regarded, for the purposes of this Part, as engaging in the business of moneylending.