Don’t sign this unfair contract :: Mmegi Online
. This provision creates an imbalance in the supplier-consumer relationship and it is almost to the detriment of consumers who lack the expertise to detect signs of unfairness in contracts until it is too late. Most consumers still sign contracts without reading them and later claim they were rushed to read or claim the contract document was too long to read. The result is that consumers are typically left with substandard products or poor service with no way out of the contract due to terms that have literally locked them in. In the worst case, canceling contracts they deem unreasonable could result in additional losses in the form of penalties such as paying exorbitant administrative fees.
In the marketplace, the providers of goods generally seem too indifferent to the welfare of the consumers, although that would be unfair to the few who make an effort. Most seem to be primarily interested in reaping market benefits and therefore quick to impose standardized conditions. Consumers are generally gullible and generally pay little heed to the terms of the contract. They only realize their mistake when the dispute arises.
In order to create a form of external control to address the imbalance of rights and duties of consumers and suppliers that tends to exist in the market economy, Botswana enacted the Consumer Protection Act 2018 (“the Act”) ) to limit the use of terms that create an imbalance between consumers and suppliers. Disclosure of information alone has proven insufficient and unable to address market failures due to the imbalance that exists between consumers and suppliers due to unfair or unfair terms, consumers generally having no other choice than to accept the standard clauses.
According to Article 23 of the law, it is illegal for the supplier of goods to use unfair or unfair terms in contracts concluded with consumers. This includes contract terms that allow the supplier to unilaterally vary the terms of the contract or agreement, or allow the supplier to price goods or services in a way that is unfair, unreasonable or unjust, allow the supplier to market goods or services in a manner that is unfair, unreasonable or unfair or which requires a consumer or other person to whom goods or services are supplied at the consumer’s direction to waive any right, assume any obligation under the contract or agreement and to waive all liability.
The fairness of a particular term is usually assessed in light of the contract as a whole, including any other terms that may compensate for the unfairness of the term. For example, additional benefits offered to the other party may outweigh a potentially abusive clause. This means that a term may be unfair in one contract but not unfair in another.
To be “unfair”, a clause must:
• cause a significant imbalance in the rights and obligations of the parties
• not be reasonably necessary to protect the legitimate interests of the party benefiting from the clause, and
• cause financial or other harm (such as delay) to the consumer if relied upon
• allow one party (but not another) to limit or avoid its obligations under the contract
• allow one party (but not another) to terminate the contract
• clauses that penalize one party (but not another) for breach or termination of the contract
• clauses which allow one party (but not another) to modify the terms of the contract.
To further protect against the harmful effects of unfair contract terms, the law required suppliers to inform consumers of certain contract terms and conditions. This covers conditions which, for example, limit the supplier’s liability in a particular transaction. For example, if the supplier sells the car to a consumer and the supplier includes in the agreement that the vehicle is “sold as is”, the law requires the supplier to explain the implications of these terms and conditions and, further, if he agrees. the terms and conditions must appear by signing and initialing next to these terms. If, during the investigation conducted by the Authority, it is found that the supplier has not complied with the requirement of the law, this is to what extent the law aims to level the supplier-consumer relationship.
An example of a consumer complaint about unfair, unreasonable or unfair contract terms and the supplier’s obligation to inform consumers of certain contract terms and conditions would be where the consumer enters into a contract with a moving for household goods with a clause that the moving company accepts no liability for any damage resulting from the negligence of the moving company.
In the above case, the contract is intended to limit the consumer’s rights which he would otherwise have against the removal company if, during the removal of the goods, the goods are damaged due to improper handling by the vendor.
The Authority, if, following investigations into the matter, concludes that the consumer has been induced to consent to such a provision in a way that violates Article 23 on fair conditions and Article 24 of the law, such a contract would, pursuant to section 23(3) of the Act be declared unenforceable against the consumer.
Suppose a consumer enters into a contract with a supplier to purchase auto parts. Under the terms of the contract, the parts must be supplied by a date specified in the contract. If the supplier is unable to supply the parts on time, the consumer has the power to terminate. However, if he does so, he must forfeit his deposit or deposits.
In the above case, the term would be considered contrary to section 23 of the Act.
WHAT TO DO IF THE SUPPLIER USES UNFAIR TERMS IN A CONTRACT
• Ask the other party to delete the clause or modify it so that it is no longer unfair
• Talk to a lawyer
• Contact the Competition and Consumer Authority