Each time we purchase goods and services we enter into consumer contracts. However we are often mistreated and subjected to the shoddiest of treatment. We don’t know whether we should complain especially when the shop displayed signs telling us to not even think about returning, exchanging or expecting a refund if the product or service turns out to be defective. We generally believe that when a shop puts up a disclaimer then it is freed from any liability or responsibility because we knew what the terms of purchase were. When we carry on and buy the item despite the disclaimer we reconcile ourselves with any potential defects so we should not cry foul later. We think it’s just tough luck. When we do summon the courage to return the shop keeper who only yesterday was smiling and courteous we find that overnight he or she can no longer speak a word of English and we can’t get a word in edgeways. If it’s the local types they suddenly become super evasive or turn so nasty and rude that we quietly slink out of the shop with our tails tucked firmly between our legs. The few people who do seem to get their money back are those who seem to know their rights or only the very toughest who can stand their ground and have the natural ability to return hurled insults and threats measure for measure. Fist fights are also not unheard of in some shops. However not all of us have this kind of stamina and so we return home to lick our wounds feeling weak, defeated and cheated dejectedly clutching the pair of broken shoes whose total lifespan was 4 hours or the counterfeit smart phone which we were told was the real deal.
Don’t disclaimers protect businesses?
No. Shops usually put up these disclaimers for no reason other than to intimidate customers. However they mean very little although there are circumstances where they are valid. For example a disclaimer from exchanging underwear is valid for understandable hygienic reasons. In advanced countries in Europe simply changing one’s mind within a certain time frame can suffice to return an item and get a refund. However not so in this cut throat environment where the customer is certainly not king. No commercial enterprise or individual is allowed to cheat and swindle people out of their hard earned money simply because they warned people that they just might do that. Not all local businesses are unethical and the reputable ones do allow dissatisfied customers to complain and return defective goods. But to every single ethical business there seems to be ten unscrupulous ones whose only concern is making money to the detriment of all else including its own very customers. Interestingly and unbeknown to many people our consumer laws are also advanced even if the wheeler dealers prowling our towns are not. The law that protects against bad consumer treatment is the Consumer Contracts Act Chapter 8.03.
Consumer Contracts Act Chapter 8.03.
Its purpose is to protect consumer rights by providing relief to parties in consumer contracts where the contracts are unfair or contain unfair provisions. It does not apply to employment contracts and the selling or letting of immovable properties. It deals only with the trading of movable goods and services.
Remedies against unfair consumer contracts
There are no sacred cows and disclaimers do not protect unscrupulous traders. Disgruntled consumers can sue for poor service and get legal recourse upon sufficient proof of the unfairness. The courts can cancel, vary or enforce the contract in any way it deems fit for the particular circumstances. It can also order reimbursement of the purchase price and a refund of the costs incurred in suing the errant trader. Consumer justice is the goal. Consumers can beforehand voluntarily waive their rights to sue the trader later for any defects. It is not up to the trader to deny consumers the right to sue them through displaying disclaimers.
Next week we will closely examine what is meant by unfairness in consumer contracts.
Miriam Tose Majome a lawyer and a teacher. She can be contacted on email@example.com