Remember our series of articles on unfair contract terms? Well, it now seems that the Malaysian Parliament is set to finally come up with a law addressing the issue in the upcoming Consumer Protection (Amendment) Bill 2010.
Preferring the approach of amending an
existing statute to enacting a wholly new one, the Bill inserts a new
Part into the existing Consumer Protection Act 1999, namely Part IIIA
intituled Unfair Contract Terms. This Part contains new sections 24A to
24J all intended to address the issue of when businesses seek, via
standard form contracts, to impose on consumers terms excluding or
limiting their liability when they arise, as well as other terms thought
generally considered unfair. Section 1(3) provides that the Part
applies to contracts entered into after the coming into force of the
Bill.
Section 24A deals with general
interpretation in connection with the Part. The definition of a contract
in section 2 of the Contracts Act 1950 is retained and a “standard form
contract” is defined as a consumer contract that has been drawn up for
general use in a particular industry, whether or not the contract
differs from other contracts normally used in that industry. An “unfair
term” is defined as a term in a consumer contract which, having regard
to all the circumstances, causes a significant imbalance in the rights
and obligations of the parties arising under the contract to the
detriment of the consumer. Section 24B states that notwithstanding the
Contracts Act 1950, the Specific Relief Act 1950 and the Sale of Goods
Act 1957 as well as other provisions of the law for the time being in
force, the Part shall apply to “all contracts”. This presumably
addresses implied terms regarding sale of goods in the Sale of Goods Act
1957, specifically sections 14 to 16 of that Act regarding transfer of
title and issues of merchantability and fitness for the purpose for
which goods are bought. The section fails to mention the Hire Purchase
Act 1967, of which section 7 also deals with implied terms in hire
purchase agreements. Also should the Part really extend so broadly so as
to include all contracts? Presumably if such is the case, a contract or
contract term proscribed by law, such as those in the Schedules to the
Housing Development (Control and Licensing) Regulations 1989, or
financial or securities contracts, or contracts or bills of consignment
or lading, be included as well?
Section 24C and 24D are probably the most
important sections in the new Part. The Malaysian Parliament has
preferred to split the question of unfair terms into two, dealing with
terms that are procedurally unfair (section 24C) and substantially
unfair (Section 24D). Section 24C(1) proscribes that a contract term is
procedurally unfair when
i. It results in an unjust advantage to the supplier (ie. the business relying on the term in question) and/or;
ii. It results in an unjust disadvantage to the consumer;
iii. On account of the conduct of the supplier; or
iv. On account of the manner or circumstances that the contract is entered into between the supplier and the consumer.
Section 24D(1) holds that a contract term is substantially unfair when;
i. it is in itself harsh;
ii. it is oppressive;
iii. it is unconscionable;
iv. it excludes or restricts liability for negligence;
v. it exludes or restricts liability for breach of express or implied terms of the contract “without adaquate justification”.
The approach of splitting the dealing
with such terms into procedurally unfair and substantially unfair is
rather unique and this author knows not of any other jurisdiction within
the Commonwealth that has chosen this approach. It is also, in this
author’s view, rather needless and unneccessary. A substantially unfair
contract term is neccessarily procedurally unfair as well. The two are
not mutually exclusive. There is also the troubling question of what
would about to inadaquate justification for breach of express or implied
terms of a contract. When is the justification adaquate and when is it
not? Presumably this follows the approach of determining if whether the
exclusion of such terms are fair and reasonable or not, but for this to
work the statute itself must give an account of what “adaquate
justification” amounts to rather then just simply leave the matter for
the courts. Such an approach would be in tandem with those used in other
jurisdictions, such as the United Kingdom in their Law Commission’s
proposed Unfair Contract Terms Bill 2005,
specifically clase 14(1) which provides a test on how contract terms
are deemed not fair and reasonable. It is also noted that Malaysia has
decided that exclusion or limitation of liability for negligence is to
be disallowed outright rather than having it hang on whether such an
exclusion or limitation is fair and reasonable or as the Bill puts it
“without adaquate justification”.
Sections 24C(2) and 24D(2) at least
partially follow the approach of Clause 14 of the UK Bill (specifcally
Clause 14(4) )when they list the considerations to be had when
determining when a contract term is procedurally or substantially
unfair. The considerations are mostly the same between the soon to be
Part IIIA of the Consumer Protection Act 1999 of Malaysia, and Clause
14(4) of the Unfair Contract Terms Bill 2005 of the United Kingdom, and
again the latter does not contain needless distinction between what is
substantively and what is procedurally unfair. The new section also
fails to provide an example of a list of terms that can be thought
unfair unlike the corresponding Clause in the UK Bill.
Section 24E states that it is for the
supplier (ie the business) to prove that the contract term is with
adaquate justification. This is the same as Clause 16(1) of the UK
Unfair Contract Terms Bill 2005. Section 24F provides that a court or
the Tribunal established by the 1999 Act may deal with any issue of any
unfair contract term even if none of the parties has raised the matter,
again similar to Clause 21 of the UK Bill.
Section 24G(1) enacts that a court or the
Tribunal may declare an unfair contract term under sections 24C and 24 D
to be void and subsection (2) is not unlike Clause 24 of the UK Unfair
Contract Terms Bill which provides that other clauses of the contract
affected are to continue in force without the offending term. Section
24H further provides that a term of a contract can still be held void
even if it has been partially or wholly executed. This is a novel idea
as it provides more certainty as to the position of the parties in the
midst of a continuing contract.
Section 24I makes the contravention by
“any person” (as defined under subsection (1)) of the Part an offence.
The section is silent on how exactly is the Part contravened. First of
all, why “any person”? Is it possible for the consumer to commit an
offence under the Part? Or is the inclusion of any unfair contract term
by a supplier/business to be made an offence? If this is so, it should
have been clearly spelt out. There is also a host of other matters that
arise by making unfair contract terms an offence, for instance, it could
inhibit freedom of contract. The high penalties involved (RM 250,000
for a first offence and RM 500,000 for a subsequent offence, as well as
RM 2,000 a day in which the offence continues) could also be
pontentially crippling for small businesses. Other jurisdictions have so
far not seen the need to make any inclusion of an unfair contract terms
an offence and while the merits of such a move are debatable, it is
suggested that a comprehensive study on the move be done at first.
Section 24J empowers the Minister to make
Regulations in connection with the Part. This section could provide an
avenue to remedy two important defects discovered so far, namely the
failure to indicate the extent of the application of the Part and the
types of contracts involved and secondly, the failure to provide an list
of examplary contract terms that might be thought unfair.
The proposed new Part IIIA of the
Consumer Protection Act 1999 as will be introduced by the Consumer
Protection (Amendment) Act 2010 contains many weaknesses, all of which
could and should be addressed by enacting a single comprehensive piece
of legislation on unfair contract terms, rather then by simply amending
an existing statute. It does not, for example, include unfair notices.
Thus while a consumer can now worry less about whether he or she may
claim under a defective contract, the same might not be said for a
notice, for example, one notice excluding liability for negligence when
using a swimming pool or car park, for example, is not covered
by the new Part on a plain reading of the Bill, which clearly limits
its scope to standard form contracts, and does not mention notices. This
is in spite of Domestic Trade and Cosumer Affairs Minister Datuk Seri
Sabri Yaakob’s claims to the contrary.
The Bill also makes an unneccesary
distinction between procedural and substantive unfair contract terms. It
fails to make provision as to what types of contracts exactly are
covered by the Part and extending the application to “all” contracts
could possibly have unexpected and unfavourable ramifications. It
crucially also fails to address the issue of application taking into
account where the contract is concluded (ie whether in or outside
Malaysia) or what happens when a contract applies foreign law. A test
for determining what amounts to “without adaquate justifiaction” is
absent, as well as a list of examples of unfair contract terms. What
offence created is not clearly defined and the potential effects not
carefully studied.
On the other hand, initiative is
demonstrated by providing that a term of a cotinuing contract can also
be struck down on account of being unfair. On the whole, it is remarked
that some form of bulwark against unfair contract terms in consumer
contracts is better then nothing but there is room for improvement. It
is hoped that those that be can revisit the issue in the future and
consider seperate, more comprehensive legislation on the matter instead.
It would be interesting, however, to see how the Malaysian courts react
to the new legal provisions on unfair contract terms, especially
concerning if they would follow the approach of their foreign
counterparts in deducing unfair terms, or create their own notions based
on the new provisions.
5 July 2010