Consumer Protection Act Article 7: Responsible, Honest and Fair Dealings Part 3

In our previous article we discussed marketing in terms of the Act but in regards to responsible, honest and fair dealings regarding prohibited schemes and practices.  

In this article, we shall continue on this aspect but in relation to specific rights such as over-selling and bait marketing.

Over-selling and over-booking:

When offering any goods or services a supplier must have a reasonable basis for stating that he/she is in a position to do so. Therefore, a supplier must be able to honour an agreement for the supply of goods or services on a specified date and time. Should they not do so due to insufficient stock or capacity the consumer may request a refund, with interest. Also, the consumer may have a claim for damages for the supplier’s breach of contract.  

There are however exceptions to this rule:

  1. If the supplier of goods or services offered to provide comparable goods through a third-party supplier and the consumer either accepted same or unreasonably refused same; and

  2. If the shortfall in goods or services was beyond the control of the supplier. However, it will not offer a defence if the shortfall was due to the supplier’s lack of diligence.

Bait marketing:

This occurs when a supplier of goods or services lures consumers to his/her business with the promise of specific goods or services at set low prices. However, when the consumer attends to the business such goods or services are not available or not available at the set prices. This is done in the hopes that the consumer will purchase other items usually at a higher price.  

If the offer is only available in limited quantities, then the same must be advertised and the offer must be to the extent of its limitation.

In this instance, it is also a defence if the supplier has arranged comparable goods or services from a third-party supplier. This must be done within a reasonable time and at the same advertised price.

Unconscionable conduct:

What this entails is morally unacceptable conduct and consists of coercion, force, undue influence, duress, harassment or similar conduct when:

  1. Marketing or supplying any goods or services;

  2. Negotiating, concluding, enforcing or executing an agreement for goods or services;

  3. Demanding payment or collecting payment for goods or services; and

  4. The recovery of goods or services by not following due process.

A supplier of goods or services may not take advantage of a consumer’s inability to protect their interests for any reason including physical or mental incapacity, ignorance, illiteracy or any misunderstanding relating to language or the like.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney

In our next article, we shall continue to discuss responsible, honest and fair dealings but in relation to specific rights such as negative option marketing and promotional competitions.