Sie sind auf Seite 1von 89

MGMT 2021

The Consumer Protection Act, 2005


& Exemption/Exclusion Clauses
Lecturer: Arnaldo Brown
Establishment of Commission

• The Act establishes the


Consumer Affairs Commission as
a body corporate to inter alia:

2
Establishment of the Commission

Section 5

3
Section 5(1)

• There shall be established for the purposes


of this Act a body to be called the Consumer
Affairs Commission (hereinafter in this Act
referred to as the Commission), which shall
be a body corporate to which the provisions
of section 28 of the Interpretation Act shall
apply.

4
Functions of the Commission

Section 6

5
Functions of Commission

• 6.—(1) Subject to subsection (3),


the Commission shall—

6
Section 6 (1)

(a) carry out, at the request of a consumer who has


been adversely affected, such investigations in
relation to the sale of goods or the provision of services
as will enable it to determine whether the goods were
sold or the services were provided in contravention of
this Act and thereafter to make such report and
recommendations in connection therewith as it thinks
fit to the Minister;

7
Section 6 (1)

(b) carry out, on its own initiative, such


other investigations in relation to the
availability of goods of any class or
description as it thinks fit and make
such report and recommendations as
it thinks fit to the Minister;
8
Section 6 (1)

(c) promote the development of organizations


formed for the protection of the consumer and
ensure that they fulfill the criteria listed in
section 4;

9
Section 6 (1)

(d) collect, compile and analyze information in


relation to any trade or business;

10
Section 6 (1)

(e) provide information to consumers on their


rights as consumers and any other form of
consumer education;

11
Section 6 (1)

(f) implement education programmes for the


benefit of consumers, suppliers and service
providers;

12
Section 6 (1)

(g) seek to resolve disagreements between


consumers and providers; and

13
Section 6 (1)

(h) carry out such other functions as the


Minister may assign to the Commission from
time to time.

14
Section 6 (2)

• (2) Subject to the provisions of this Act, the


Commission may, for the purpose of exercising
or discharging any of its functions under this
Act, do anything and enter into any
transaction which, in the opinion of the
Commission, is necessary to ensure the proper
the opinion of the Commission, is necessary to
ensure the proper

15
Section 6 (3)

• (3) The Commission shall investigate, in the


manner provided in sections 7 to 12, any
action alleged to have been taken by a
provider to the disadvantage of the
complainant.

16
PART IV.
Duties of Providers and Consumers

SECTION 18

17
Information to Consumer

• 18.—(1) At any time before payment is made


for any goods (whether sold as new or used) a
provider shall, in addition to the requirements
of any other enactment relating to the
packaging, labelling or description of goods,
provide to the consumer, verbally or in writing
in the English language, all information
concerning the goods being sold.

18
Information to Consumer

• (2) The information referred to in subsection


(1) is—
(a) where applicable, the origin, price in the
currency of Jamaica, care, terms, components,
proper use, weight, size, instructions for
assembly and installation of the goods; and

19
Information to Consumer

• (2) The information referred to in subsection


(1) is—
(b) where chargeable, the professional fees of
the provider in respect of the goods.

20
Information to Consumer

• (3) Where a provider refuses or fails to comply


with subsection (1) he shall, notwithstanding
anything to the contrary in the warranty
document, be responsible for any damage
done to the goods by the consumer that can
be directly attributed to the consumer’s lack
of information.

21
Information to Consumer

• (4) A provider who contravenes subsection (1)


commits an offence and is liable on summary
conviction before a Resident Magistrate to a
fine not exceeding two hundred thousand
dollars.

22
Measurement of Goods

SECTION 19

23
Measurement of Goods

• 19.—(1) A consumer shall at all times be


entitled to check the weight, volume or other
measurement of any goods that he may be
purchasing where the weight, volume or other
measurement of the good materially affects or
determines the price thereof.

24
Measurement of Goods

• (2) For the purposes of subsection (1), any


provider of any good that is sold by reference
to its weight, volume or other measurement
shall provide appropriate measurement
standards in accordance with the Weights and
Measures Act for use by the consumer at the
time of purchase.

25
Measurement of Goods

• (3) A provider commits an offence if in selling


or purporting to sell any goods by weight or
other measurement or by number, he delivers
or causes to be delivered to the consumer, a
lesser quantity than that purported to be
supplied or that corresponds with the price
charged.

26
Measurement of Goods

• (4) A provider who contravenes this section


commits an offence and is liable on summary
conviction before a Resident Magistrate to a
fine not exceeding five hundred thousand
dollars.

27
Receipt to be given to Consumer

SECTION 20

28
Receipt to be given to Consumer

• 20.—(1) Where a consumer purchases goods


or services from a provider, the provider shall
give to the consumer a receipt showing—

29
Receipt to be given to Consumer

• (a) the amount paid by the consumer;


• (b) the date on which the purchase is made;
• (c) a description of the goods or services sold;
• (d) where applicable, the professional fee
charged; and
• (e) such other information as may be
prescribed.
30
Receipt to be given to Consumer

• (2) At any time subsequent to the purchase,


the receipt issued by the provider shall be
adequate proof of the purchase of the goods
or services and may be used for the purposes
of refund in any of the circumstances specified
in this Act.

31
Receipt to be given to Consumer

• (3) A provider who contravenes subsection (1)


commits an offence and is liable on summary
conviction before a Resident Magistrate to a
fine not exceeding fifty thousand dollars or to
imprisonment for a term of thirty days or to
both such fine and imprisonment.

32
Warranties

SECTION 21

33
Warranties

• 21.—(1) Subject to the standard provisions of


warranties, a provider shall issue explicit
warranties in relation to his goods or services,
as the case may be, whether the goods are
new or used, and whether the service offered
is the repair of any appliance, furniture,
equipment or other good.

34
Warranties

• (2) Any warranty given by the manufacturer


(whether local or foreign) and attached to any
goods or services sold or provided, as the case
may be, in Jamaica shall be deemed to extend
to the provider in Jamaica who shall be liable
to the consumer in relation to such warranty.

35
Warranties

• (3) Where a provider is liable only for the free


replacement of parts under a warranty
agreement, the provider shall not require the
consumer to use the services of the provider
in effecting the repairs to the equipment.

36
Warranties

• (4) Implied warranties in the absence of


explicit warranties shall apply to the sale of all
used goods and to the repair of all goods.

37
Warranties

• (5) Where the service provided is the repair or


replacement of a defective good, there shall
be an implied warranty that the repair or any
replacement of the good shall be carried out
within a reasonable time, and the implied
warranties applicable to the contract for sale
of goods shall apply in relation to repaired or
replacement goods.

38
Warranties

• (6) In the absence of an explicit warranty


which shall be at the discretion of the
provider, an implied warranty of six months on
parts and labour shall, subject to the standard
conditions of warranties, attach to the
transaction.

39
Damage resulting from use of
service or goods.

SECTION 22

40
Damage resulting from use of
service or goods.

• 22.—(1) Subsection (2) applies in any case


where a provider—
(a) undertakes to provide a consumer with a
good or service upon payment of a fee therefor;
(b) provides the declared benefit attached to the
service or use of the good; and

41
Damage resulting from use of
service or goods.

• 22.—(1) Subsection (2) applies in any case


where a provider—
(c) inadvertently causes bodily injury or
pecuniary loss to be sustained by the consumer,
independent of all other causes or contributory
negligence.

42
Damage resulting from use of
service or goods.

• (2) The provider shall, upon presentation by


the consumer of a complaint, accompanied by
a document from the Commission
substantiating that, in its opinion, and after
consultation with the provider, the complaint
is valid and well founded—

43
Damage resulting from use of
service or goods.

• (a) undertake to pay the consumer all


reasonable costs incurred or to be incurred by
the consumer in correcting the damage so
caused; and

44
Damage resulting from use of
service or goods.

• (b) initiate payment of compensation within


such period, not exceeding seven days after
the complaint is received at the registered,
regional or local offices of the provider,

45
Damage resulting from use of
service or goods.

• provided that where a provider is unable to


initiate such payment within the period of
seven days aforementioned, he may apply to
the Commission seeking leave to extend the
period within which the payment may be
made.

46
Damage resulting from use of
service or goods.

• (3) A provider shall not be relieved of liability


if—
(a) the consumer fails to avail himself of some
other good or service that may be
recommended by the provider of the primary
good or service as a supplementary or
complementary good or service; or

47
Damage resulting from use of
service or goods.

• (3) A provider shall not be relieved of liability


if—
(b) he has provided complementary goods or
services which fail to function well or cause
damage or other loss.

48
Damage resulting from use of
service or goods.

• (4) A provider who contravenes subsection (2)


or (3) commits an offence and is liable on
summary conviction before a Resident
Magistrate to a fine not exceeding five
hundred thousand dollars.

49
Damaged goods sold to
Consumer

SECTION 23

50
Damaged goods sold to
Consumer

• 23.—(1) Where—
(a) any good sold to a consumer fails to provide
to the consumer the benefit and
uninterrupted enjoyment for which it was
intended; and

51
Damaged goods sold to
Consumer
• 23.—(1) Where—
(b) the failure is determined by the Commission,
after consultation with the provider, not to be
due to apparent negligence or abuse by the
consumer within the comprehensive warranty
period,
then the relevant provider shall be responsible
for its replacement or repair at no cost to the
consumer.

52
Damaged goods sold to
Consumer
• (2) The provider shall, in the event of repair of
the good referred to in subsection (1)—

(a) return the good to the consumer in a fully


repaired and functional state within such period,
after receipt of the good for replacement or
repair, as the Commission, after consultation
with the provider, considers to be appropriate.

53
Damaged goods sold to
Consumer

• (b) if the good is not returned to the


consumer within the period determined by
the Commission, provide the consumer with a
temporary substitute of comparative value for
the consumer's uninterrupted use and
enjoyment until such time as the consumer's
good is replaced or repaired and returned.

54
Damaged goods sold to
Consumer

• (3) A provider who contravenes subsection (2)


commits an offence and is liable on summary
conviction before a Resident Magistrate to a
fine not exceeding two hundred thousand
dollars.

55
Return of defective Goods

SECTION 24

56
Return of defective Goods
• 24.—(1) Subject to subsections (3) and (4),
where a consumer is encouraged to acquire
goods by the provider’s declaration and
description of the goods and the consumer
subsequently discovers that those goods are
defective or different in a material particular
from those declared or described, the
consumer may return the goods to the
provider.
57
Return of defective Goods

• (2) The provider shall immediately offer to the


consumer, in exchange for the returned goods,
monetary compensation to the value of the
goods or such other amount as may be agreed
between the consumer and provider.

58
Return of defective Goods

• (3) Refunds on goods returned to a provider


pursuant to subsection (1) shall only be made
where the goods are returned to the
provider—

(a) in the condition in which they were


purchased; or

59
Return of defective Goods

(b) with minimal damage resulting from


reasonable exposure in the normal course of the
consumer's use of the goods prior to discovery
of the material difference between the goods
received and the goods that the consumer
requested;

60
Return of defective Goods

• (c) where there is a dispute as to the condition


of the goods the Commission may, upon
request, examine the goods with a view to
making a determination as to the conditionof
the goods.

61
Return of defective Goods

• (4) A consumer who acquires a good that in


every way is similar or identical to the one
requested or described and declared by the
provider shall not be entitled to a refund if,
having left the place from which the provider
sold the good, the consumer for any reason
decides that he no longer wants it.

62
Return of defective Goods

• (5) A provider who contravenes subsection (2)


commits an offence and is liable on summary
conviction before a Resident Magistrate to a
fine not exceeding five hundred thousand
dollars.

63
Return of Electrical Goods

SECTION 25

64
Return of Electrical Goods
• 25.—(1) Subsection (2) shall apply in any case
where—
(a) a consumer purchases any electrical good,
believing it to be fully functional and
operational; and
(b) upon attempting to use it, the consumer
discovers that it is faulty or non-functional.

65
Return of Electrical Goods
• (2) The consumer shall, upon returning the
good to the
(a) an exchange of the faulty good for a new
functional similar good free of cost; or
(b) a refund of the amount paid for the good if
the provider is unable to establish that the
good was damaged as a direct result of the
consumer’s actions.

66
Approved and non-approved
services.

SECTION 26

67
Approved and non-approved
services.

• 26.—(1) A provider shall only provide such


services as are approved by the consumer and
shall not require a consumer to sign an open
ended commitment to pay for services which,
in addition to those contracted, may, in the
provider’s opinion, be necessary or
appropriate.

68
Approved and non-approved
services.

• (2) A provider who offers a repair service


shall—
(a) disclose to the consumer any and all
additional related repairs that he deems
necessary for the consumer to enjoy reasonably
long and uninterrupted use of the repaired
good; and

69
Approved and non-approved
services.

• (2) A provider who offers a repair service


shall—
(b) obtain a written indemnity from the
consumer if the consumer chooses not to
require the provider to effect the recommended
repairs.

70
Approved and non-approved
services.

• (3) A provider who contravenes this section


commits an offence and is liable on summary
conviction before a Resident Magistrate to a
fine not exceeding five hundred thousand
dollars.

71
Businesses offering repair
services.

SECTION 27

72
Businesses offering repair
services.

• 27.—(1) Businesses which offer repair services


to consumers shall keep records stating—
(a) the name, address and telephone number of
the consumer;
(b) a reasonably accurate description of the
good to be repaired, including any identification
number or mark;

73
Businesses offering repair
services.

(c) the replacement value of the good in its


present state as agreed with the consumer;

(d) an estimate of the labour and other costs to


be paid by the consumer in respect of the
repairs to be effected;

74
Businesses offering repair
services.

(e) the date on which the good was received for


repair; and
(f) the date on which the good will be ready for
delivery,
and a copy of such information shall be given to
the consumer before the repairs are
commenced.

75
Businesses offering repair
services.

(2) A business which contravenes subsection (1)


commits an offence and is liable on summary
conviction before a Resident Magistrate to a fine
not exceeding five hundred thousand dollars.

76
PART VI
Unfair Contracts

Section 36

77
Breach of Duty or Obligation

• 36. In relation to any breach of duty or


obligation, it is immaterial for any purpose of
this Part whether the breach was inadvertent
or intentional, or whether liability for it arises
directly or vicariously.

78
Excluding or Restricting Liability by
Contract

Section 37

79
Excluding or Restricting Liability by Contract

• 37.—(1) A person shall not by reference to—


(a) any term of a contract;
(b) a notice given to persons generally; or
(c) particular persons,
exclude or restrict his liability for death or
personal injury resulting from negligence.

80
Excluding or Restricting Liability by Contract

(2) In the case of other loss or damage, a person


shall not so exclude or restrict his liability for
negligence except in so far as the term or notice
satisfies the requirement of reasonableness as
provided for in section 43.

81
Excluding or Restricting Liability by Contract

(3) Where a term of a contract or notice purports to


exclude or restrict liability for negligence, other than in
cases resulting in death or personal injury, the fact that
a person agrees with it or is aware of it is not of itself to
be taken as indicating his voluntary acceptance of any
risk, however the term or notice shall have effect
where the Commission determines that it satisfies the
requirement of reasonableness as provided for in
section 43.
82
Excluding or Restricting Liability by Contract –
Section 37

• Where there are exclusion clauses (contract


term or notice) in respect of other
loss/damage, then these must satisfy a
reasonableness requirement if they are to be
contractually effective (and it does not matter
if the consumer has agreed with the clause or
has read it)

83
Effect of Sale of Goods and Hire Purchase Acts –
Section 41
• Liability flowing from breach of conditions and
warranties implied by virtue of the Sale of
Goods Act and the Hire Purchase Act may not
be excluded or restricted (implied conditions
pertaining to title to goods; quality or fitness;
implied warranties to quiet possession and
free from charge or encumbrance)

84
Reasonableness

85
Reasonableness – Section 43

• The requirement of reasonableness in relation


to a contract term, is that the term is a fair
and reasonable one to be included having
regard to the circumstances which were, or
ought reasonably to have been, known to or
in the contemplation of the parties when the
contract was made

86
Reasonableness – Section 43

• The requirement of reasonableness in relation


to a notice that does not have contractual
effect, is that the notice should be fair and
reasonable to allow reliance on it, having
regard to all the circumstances obtaining
when the liability arose or, but for the notice,
would have arisen

87
Reasonableness – Section 43

• A person claiming that a contract term or


notice satisfies the requirement of
reasonableness must show that it does i.e. the
burden of proof in on the claimant

88
The End

89