A new Consumer Protection Bill will have retrospective application to all existing contracts, subject to certain provisions, a Government Minister told Parliament on Wednesday.
During her contribution to a hotly debated Unfair Terms in Consumer Contracts Bill – 2003, Minister of Financial Services & Investments, Mrs. Allyson Maynard-Gibson welcomed the measure.
She cited a number of reasons, including: It would aid in establishing standards of protection for consumers; and it would help to fulfil the Progressive Liberal Party’s ‘Our Plan’ promise to provide adequate protection for the ordinary person doing business in the country.
It would also give on-line consumers more confidence in making purchases, she said.
Taking an in-depth look at the application of the bill, the Minister said, in retrospective, it applies to all existing contracts.
And, in prospective, she said, it applies to all future contracts. Qualifying her statement, she said it applies to any term in a contract between a seller and a buyer, save where that term is individually or separately negotiated between the parties.
The seller, she said, is usually a person who supplies goods or services acting for purposes relating to his or her business. Consumers are natural persons, meaning they are not corporate or commercial structures.
The Bill, she advised, would not apply to employment contracts, succession rights, rights under family law, and incorporation and organisation of companies or partnerships – any terms incorporated in an order to comply with or which reflects Bahamian legal statutory or regulatory provisions and principles or provisions of treaties to which The Bahamas is a party.
As long as the terms in the contract are plain and in an intelligible language, she said, there is no assessment of fairness where the term defines the main subject matter of the contract and relates to adequacy of price or remuneration for goods or services supplied.
“To prevent unfair terms, the matter could be referred to the Attorney General to get an injunction preventing (a) person from continuing use of unfair term in contract, or basically anything that the Minister deems necessary or desirable to implement terms of Act,” she said. “They can also meet with seller/supplier and have regard to their undertakings and they must give reasons for applying or failing to apply for injunction.”
According to Minister Maynard-Gibson, the ‘Unfair Terms’ would be any circumstances contrary to requirement of ‘good faith’, that causes significant imbalance in the parties’ rights and obligations and anything that adds to the detriment of the consumer.
Likewise, regard will be given to all the circumstances including the strength of the bargaining position between the parties, whether the consumer was induced to agree to the terms, whether there was a special order by the consumer and the extent to which the seller or supplier had dealt fairly with the consumer.
Minister of Trade & Industry Leslie Miller said that the Bill will prevent Bahamian consumers from being ripped off.
Any unfair practices by Bahamian merchants will be met with severe legal consequences when the Act becomes law, he said.
“Until and unless we have in our laws the necessary minimum jail terms, I think it will be a wasted effort in trying to bring anything to bear on some Bahamians in this country,” Mr Miller said.
“I hate to say this,” he continued, “but experience has shown that unless jail term is proposed in any of these consumer legislation, we are simply wasting our time.”
Unless the law specifies mandatory jail terms for unscrupulous merchants, consumer protection legislation will not achieve the desired purpose, he said.
Mr Miller also emphasized the need for consumers to become more educated about the products they buy and their legal rights.
By Lisa Albury, The Nassau Guardian
