Consumer Protection Act Article 15: The agreement between the supplier and consumer Part 4

In our previous article, we discussed the agreement between the supplier and consumer in regards to the terms of an agreement.

In this article, we shall continue to discuss the agreement between the supplier and consumer but concerning unreasonable, unfair and unjust contractual terms.

The Act restricts certain terms of an agreement entered into between a supplier and consumer and also the manner in which the parties contract with each other. What this entails is that an agreement may not contain a price which is unreasonable, unfair or unjust or terms that are unreasonable, unfair or unjust.

Before the commencement of the Act a supplier was free to enter into agreements with consumers where the consumer would be expected to waive certain protections or absolve the supplier from certain liability, the commonly used limitation of liability and waiver clauses. When the Act is applicable the supplier’s use of these is limited and certain terms are restricted.

When a supplier enters into an agreement, negotiates an agreement, administers an agreement or the like the manner of same must not be unreasonable, unfair and unjust.

Therefore, a supplier may not stipulate that the consumer waives any rights or assume an obligation not ordinarily applicable or waive any liability of the supplier should the terms be unreasonable, unfair and unjust or impose any such term as a condition of entering into a transaction for goods or services.

To illustrate this certain examples are provided by the Act and in the Regulations. The following would therefore be presumed to be unreasonable, unfair or unjust terms:

  1. Terms that would be excessively one-sided in favour of the supplier;

  2. Terms that would be adverse to the consumer so as to render them inequitable, i.e.: unbalanced between the parties;

  3. Terms that are false, misleading or deceptive (dealt with previously) when relied upon by the consumer or a representation by the supplier that leads to the detriment of the consumer;

  4. A term, condition or notice regarding the assumption of risk by the consumer and the term, condition or notice is unreasonable, unfair or unjust or the effect or nature of the term, condition or notice was not drawn to the attention of the consumer.

As is apparent the interpretation of these provisions can be somewhat confusing and each case would have to be determined on its own merits.

***Kindly note that the contents of this article are intended for information purposes only and do not constitute legal advice. Consult your attorney.

In our next article we will continue to discuss the agreement between the supplier and consumer but in relation to prohibited transactions, agreements, terms and conditions.