Standard required according to this Act:
1. Changes, deferrals and waivers, and substitution of goods (Section 46)
2. Unfair, unreasonable or unjust contract terms (Section 48)
3. Notice required for certain terms and conditions (Section 49)
4. Written consumer agreements (Section 50)
5. Prohibited transactions, agreements, terms and conditions (Section 51)
A.1) Changes, deferrals and waivers, and substitution of goods – Section 46
1.1) The supply of goods or services as a result of a change to an existing agreement, or a deferral or waiver of a right under an existing agreement, is not to be treated as creating a new agreement for the purposes of this Act, if the change, deferral or waiver is made in accordance with this Act or the agreement.
1.2) If, after delivery to the consumer of goods that are subject to the agreement, parties agree to substitute other goods for all or part of the goods sold –
a) from the date of delivery of the substituted goods, the transaction applies to the substituted goods rather than the goods originally described; and
b) if the transaction was the subject of a written agreement, or the sales record identified;
any specific goods, the supplier must prepare and deliver to the consumer an amended agreement or sales record, describing the substituted goods, but without making any other changes to the original document.
A.2) Unfair, unreasonable or unjust contract terms – Section 48
2.1) The supplier may not –
a) supply, offer to supply, or enter into an agreement to supply any goods or services at a price that is unfair, unreasonable or unjust nor on terms that are unfair, unreasonable or unjust;
b) market any goods or services, or negotiate, enter into or administer a transaction or an agreement for the supply of any goods or services, in a manner that is unfair, unreasonable or unjust;
c) require a consumer, or other person to whom any goods or services are supplied at the direction of the consumer:
I. to waive any rights;
II. assume any obligation; or
III. waive any liability of the supplier, on terms that are unfair, unreasonable or unjust, or
IV. impose any such terms as a condition of entering into a transaction.
2.2) A term and/or condition of a transaction will be viewed as unfair, unreasonable or unjust if;
a) it is excessively one-sided in favor of any person other than the consumer or other person to whom goods or services are to be supplied;
b) the terms of the transaction or agreement are so adverse to the consumer as to be inequitable;
c) the consumer relied upon a false, misleading a deceptive representation, or a statement of opinion provided by or on behalf of the supplier, to the detriment of the consumer;
d) the transaction or agreement was subject to a term or condition, and the term or condition is unfair, unreasonable, and/or the fact, nature and effect of that term, condition or notice was not drawn to the attention of the consumer.
A.3) Notice required for certain terms and conditions – Section 49
3.1) Any notice to a consumer or provision of a consumer agreement which purports to:
a) limit in any way the risk or liability of the supplier or any other person;
b) constitute an assumption of risk or liability by the consumer;
c) impose an obligation on the supplier or any other person for any cause;
d) be an acknowledgement of any fact by the consumer;
must be drawn to the attention of the consumer in a manner and form that satisfies the stipulations of this Act.
3.2) The supplier must specifically draw the fact, nature and potential effect of that risk to the consumer’s attention in writing and in plain language and provide the consumer with adequate opportunity to comprehend the provision or notice, and the consumer must have assented to that provision or notice by signing or initialing the provision or otherwise acting in a manner consistent with acknowledgement of the notice, awareness of the risk and acceptance of the provision.
A.4) Written consumer agreements – Section 50
4.1) The minister may prescribe categories of consumer agreements that are required to be in writing.
4.2) Note: If a consumer agreement between a supplier and a consumer is in writing whether as required by this Act or voluntarily the following will apply:
a) it applies irrespective of whether or not the consumer signs the agreement and;
b) the supplier must provide the consumer with a free copy, or free electronic access to a copy, of the terms and conditions of that agreement which must adhere to the following:
I. satisfy the requirements of being in plain and understandable language as set out in;
II. Section 22 of this Act; and
III. set out an itemized break-down of the consumers financial obligations under such;
c) if a consumer agreement between a supplier and a consumer is not in writing, a supplier must keep a record of transactions entered into over the telephone or any other recordable form as prescribed.
A.5) Prohibited transactions, agreements, terms and conditions –Section 51
5.1) A supplier must not make a transaction or agreement subject to any term or condition if:
a) its general purpose is to defeat, mislead or subject the consumer to fraudulent conduct;
b) it directly or indirectly purports to waive or deprive a consumer of a right in terms of this Act, set aside or override the effect of any provisions of this Act, or authorize the supplier to do anything that is unlawful or fail to do anything that is required in terms of this Act;
c) it purports to limit or exempt a supplier of goods or services from liability for any loss directly or indirectly attributable to the gross negligence of the supplier of any person acting for or controlled by the supplier or impose an obligation on a consumer to pay for damage to, or otherwise assume the risk of handling any goods displayed by the supplier, except if consumer is found to be gross negligent;
d) it results from an offer prohibited by negative option marketing;
e) it requires the consumer to enter into a supplementary agreement;
f) it purports to cede to any person charge, set off against a debt, or alienate in any manner, a right of the consumer to any claim against the Guardian’s fund;
g) it falsely expresses an acknowledgement by the consumer that:
I. before the agreement was made, no representation or warranties were made by the supplier or representative of the supplier;
II. the consumer has received goods or services, or a document that is required by this Act to be delivered to the consumer;
h) it requires the consumer to forfeit any money to the supplier if the consumer exercises any right in terms of this Act or to which the supplier is not entitled in terms of this Act, or any other law;
i) it expresses, on behalf of the consumer:
I. an authorization for any person action on behalf of the supplier to enter any premises for the purposes of taking possession of goods to which the agreement relates;
II. an undertaking to sign in advance any documentation relating to enforcement of the agreement, irrespective of whether such documentation is complete or incomplete at the time it is signed; or
III. a consent to a predetermined value of cost relating to enforcement of the agreement, except to the extent that is consistent with this Act;
j) it express an agreement by the consumer to:
I. deposit with the supplier, or with any other person at the direction of the supplier, an
II. identity document, credit or debit card, bank account or automatic teller machine
III. access card, or any similar identifying document or device; or
IV. provide a personal identification code or number to be used to access an account.
5.2) A supplier may not:
a) directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any documentation, that contains a provision as stipulated in 5.1;
b) request or demand a consumer to:
I. give the supplier temporary or permanent possession of an instrument, other than for
II. the purpose of identification, or to make a copy of such instrument; or
III. reveal any personal identification code or number.
c) direct or knowingly permit any other person to do anything referred to in this section on behalf of or for the benefit of the supplier.
5.3) A purported transaction or agreement, provision, term or condition of a transaction or agreement, or notice to which a transaction or agreement is purported to be subject, is void to the extent that it contravenes this section.
5.4) Section 51 does not preclude a supplier to require a personal identification code or number in order to facilitate a transaction that in the normal course of business necessitates the provision of such code or number.
Have an questions, please reach out to Bruce Roworth, Managing Director on firstname.lastname@example.org