CONSUMER PROTECTION

By: Nurul Ashiqin Shamsurinurulashiqin@ucsiuniversity.edu.my

Prepared for: BB 103

Consumer Protection Legislation

The consumer Protection Act 1999 provides for:1) The protection of consumer2) The establishment of the National Consumer

Advisory Council and the Tribunal for Consumer Claims

3) Matters connected to consumer protection advisory adj. 顾问的 , 咨询的 ; 忠告的 ; 劝告的

Definition of “goods”:Goods which are primarily purchased, used or

consumed for personal, domestic or household purposes, and include fixtures, vessels and

vehicles but does not include negotiable instruments, shares, debentures and money (s.3

SOGA 1957) fixture [n. 固定物 , 设备 debenture [n. 公司债券

Protect consumer against:

a) Misleading and deceptiveb) False representation and unfair

practicec) Ensures safety standards and

requirement for goods and prohibits unsafe goods.

d) Provides guarantees in respect of supply of goods, such as:

i. Implied guarantee as to title-s.31ii. Implied guarantee as to acceptable

quality-s.32

iii. Implied guarantee as to fitness for particular purpose. S.33

iv. Implied guarantee that goods comply with description. S.34

v. Implied guarantee that goods comply with sample. S.35

vi. Implied guarantee as to the price. S.36vii. Implied guarantee as to repairs and spare parts.

S.37viii. Manufacturer’s express guarantee. S.38

Part VI of the act- provides consumers with certain rights against supplier in respect of guarantees in the supply of goods.Part VII- provides consumers with certain rights against supplier in respect of guarantees in the supply of goods.

Part 10 - concern product liability Tribunal for Consumer Claims:1. Hear claims of up to a value of RM10,0002. No jurisdiction over land matters (except

fixtures), wills intestacy, goodwill, chose in action, trade secret or intellectual property.

3. No representation by advocates and proceedings are open to the public.

jurisdictionn. ： 司法权 , 管辖权 , 审判权 advocate ： 拥护 proceeding ：诉讼程序

4. Agreed settlements and awards are final and binding and deemed an order of Magistrate’s Court and are enforceable.

5. Failure to comply with an award within 14days- fine up to RM5000 or 2 years imprisonment or both.

6. Settlement ： 解决 award ： 判决 deemed ： 被认为 binding ： 有约束力

Product liability

CPA 1999It should be noted that the CPA generally DOES NOT APPLY to contracts made before 15th Nov 1999, securities, future contracts, land or interests in land and trade transactions effected by electronic means.transaction n. 交易 , 执行 , 办理

The provisions of the CPA regarding product liability envisage strict liability on the part of the parties specified therein, to the extent that the consumer does not have establish fault.However, the consumer will still have to prove that the product was in fact defective and that the defect caused him injury or loss.The CPA also overcomes issues of privity that would normally arise in contract.envisage v. 想像 , 设想 ; 正视 , 面对 specific n. 特性 ; 详情 ; 特效药 ; 详细说明 adj. 特殊的 , 具有特效的 , 明确的therein adv. 在其中 , 在那一点上 , 在那里

In practical terms, it is the manufacturer and supplier of the defective product who face increased potential liability under CPA.

The legislature’s intent in ensuring that consumers’ rights and remedies under the CPA are preserved is evidenced by the facts that any choice of the law clause in the contract of sale which applies the law of another country will be ousted.

If the clause appear to have been imposed wholly or mainly for the purpose of enabling the party imposing it to evade the operation of the CPA.legislature n. 立法机关 , 立法院 , 议会 intent n. 意图 ; 意向 ; 目的 adj. 专心的 ; 热心的 ; 决心的 clause ：条款 evade ：逃避 remedy n. 药物 , 补救 , v. 治疗 , 矫正 , 补救 oust v. 驱逐 , 撵走 ; 剥夺 impose v. 征 ; 把 ... 强加于 ; 加于 ; 利用 ; 施影响 ; 欺骗

In addition, parties are not only prohibited from contracting out of the CPA, but it is in fact an offence for the manufacturer or supplier of the product to do so.A consumer can elect to bring his claim before either:-The Civil Court; or-The Tribunal for Consumer Claims.-offence n. 犯罪 , 违反 , 冒犯 tribunal n. 法官席 , 法庭 , 法院

Most claim of significance will be brought in the civil courts, given that the Tribunal’s jurisdiction to award compensation is presently limited to RM25,000 unless the parties otherwise agreed. jurisdiction n. 司法权 , 管辖权 , 审判权 award v 颁发 compensation ： 补偿

Tort• Although CPA has been in force for more than

10 years, its provisions are seldom relied upon by consumers, who instead tend bring product liability claims solely based on the common law tort of negligence.

• provision [pro·vi·sion || prə‘vɪʒn] tort [tɔrt /tɔː-] n. 民事侵权行为 rely [re·ly || rɪ'laɪ]v. 依靠 , 依赖 ; 信赖 , 相信 ; 指望

n. 供应 ; 防备 ; 预备 ; 食物• v. 向 ... 供应粮食• negligence [neg·li·gence || 'neglɪdʒəns]• n. 疏忽 , 粗心 ; 随便 , 不修边幅 ; 疏忽行为• claim [kleɪm]• n. 要求 ; 要求权 ; 权利 ; 所有权• v. 要求 ; 声称 ; 认领

• With regards to negligence, the plaintiff will normally sue the manufacturer and/or supplier of the defective product, and will have to establish fault on the part of the defendant.

• In such a situation, the question of privity of contract does not arise.

• plaintiffn. 起诉人 ; 原告 • defective adj. 有缺陷的 ; 欠缺的 defendant n. 被告• privity n. 私下知悉 , 默契• arise v. 升起 , 上升 ; 起立 ; 产生 , 形成 , 出现 ; 复活

• The plaintiff can establish liability on the part of the defendant if he can prove that the defendant:

1)Owed him a duty to take reasonable care in all the circumstances of the case

2)That the defendant breached the duty, and3)That the damage or injury suffered by the

plaintiff was reasonable foreseeable.• prove v. 证明 , 证实 ; 查验 ; 表现 , 显示 ; 检验 ; 证明是 ; 原来是 • foreseeable adj. 可预见到的

• There is a little doubt that in the case of a defective product, the manufacturer owes a duty to the purchaser of the product to take reasonable care in manufacturing and designing the product, or any components used in the assembly of the product.

• owe v. 欠 , 感激 , 受到 ... 的思想 ; 欠钱

Contract

• The purchaser of the defective product can sue the party from whom he purchased the product for breach of contract, and recover any loss or damage suffered, upon establishing that the party concerned has breached the contract of sale.

• Defective : 有缺陷的

• In most situation the party to the contract will be the supplier.

• Given that the doctrine of privity of contract dictates that the suit can only be brought against the actual party to the contract, manufacturers are seldom sued and there is usually NO contractual relationship between the manufacturer and the purchaser.

• Doctrine : 教条 privity ： 默契 dictate ： 规定 seldom ： 很少

• However, the manufacturer may on occasion independently undertake liability to the purchaser (e.g through a warranty), in which case he may be liable.

• In addition to the normal contractual terms, condition may be implied in certain circumstances by SOGA 1957 to the effect that the product shall reasonably fit for purpose for which it is required and that the product shall be merchantable quality.

• Occasion ：场合 warranty ： 根据 保证 liability ： 责任 undertake ：承担 liable ： 有义务的• Term ： n 期间期限 reasonably ： adv 适度的 merchantable ： 有销路的•

• However, these terms are frequently excluded by the terms of the contract of sale.

• Where CPA does not apply, the extent of the supplier's contractual liability will inevitably depend on the terms and conditions of the contract, and the supplier can choose to exclude or limit his liability if he so wishes.

• exclude • v. 除外 , 拒绝 , 排除 • extent• n. 范围 , 区域 , 程度

Thank You