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CONSUMER PROTECTION ACT, 2010
(Act 30 of2010)
ARRANGEMENT OF SECTIONS
Sections
PART I - PRELIMINARY
1. Short title 2. Interpretation
PART II - FAIR TRADING COMMISSION
3. Administration 4. Functions 5. Complaints 6. Investigations by Commission 7. Discontinuation ofinvestigation 8. Report 9. Convening ofHearings
PART 111- UNFAIR CONTRACT TERMS
10. Interpretation ofthis Part and Schedule 11. Terms not individually negotiated 12. Burden ofproof 13. Written terms to be plain and intelligible 14. Unfair teffi1S 15. Assessment ofunfairness 16. Effectofunfairterm 17. Governing law 18. Application.ofthis Part
PART IV - UNFAIR TRADE PRACTICES
Disclosure and Information
19. Information to be in plain and understandable language 20. Disclosure ofprices ofgoods and services 21. Selling above displayed price and dual pricing 22. Product labelling and trade descriptions
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23. Liability for damage caused by goods not complying with prescribed trade description requirements
24. Expiry dates 25. Sales records 26. Full cost to be stated in certain cases
Fair and responsible marketing
27. Bait advertising 28. Distance selling 29. Referral selling
Fair and honest dealing
30. Misleading or deceptive conduct 31. Misleading or deceptive conduct in relation to goods and services 32. False representations 33. Unconscionable conduct in consumer transactions 34. . Unconscionable conduct in business transactions 35. Offering gifts and prizes 36. Dishonestly accepting payment 37. Pyramid selling
Right to choose
38. Unsolicited goods or services
PART V - FAIR VALUE, GOOD QUALITY AND SAFETY
39. Interpretation ofthis Part 40. Standards for performance ofservices 41.. Liability for damage due to failure to perform services to required
standard 42. Warranty for unsuitable, defective and unsafe products 43. Warranty on repaired goods 44. Warning concerning fact and nature ofrisks 45. . Liability for damage caused by unsafe, unsuitable and defective goods 46. Unidentified manufacturer 47. Prohibition ofexclusion ofliability 48. Jurisdiction and time limit for bringing action
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PART VI - CONSUMER SAFETY
49. Interpretation of this Part 50. General safetyrequirement. 51. Liability for damages caused by goods not complying with general
safety requirement 52. Prohibition andwarning notices 53. Notice to produce information 54. Compulsoryrecall ofgoods . 55. Compliancewith notice 56. Liability for lossor damage due to non-compliance 57. Powers ofCommission 58. Voluntary recall to benotified 59. Liability ofinsurer in certain cases
PART VII - INDUSTRY CODES
60. Interpretation of this Part 61. Contravention ofindustry codes 62. Industry codes 63. Procedure for recommending industry codes 64. Industry codes to be consistent with purposes andpolicies ofthisAct 65. Power ofCommission to require information 66. Binding force ofindustry codes
PART VIII - PENALTIES AND REMEDIES
67. Penalties for breach ofprovisions ofthisAct 68. Directions 69. Offences by body corporate 70. Enforcement ofdirection, order or undertaking
PART IX - ENFORCEMENT
71. Enforcement functions ofCommission 72. Compliance notice 73. Objection to compliance notice 74. Interim measures 75. Undertakings 76. Other orders
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PART X -MISCELLANEOUS
77. Appeals 78. Relationship with regulatory and other authorities 79. Promotion ofawareness in consumer protection matters 80. Regulations 81. Consumer ProtectionAct, 1977repeal
SCHEDULE
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CONSUMER PROTECTION ACT, 2010
(Act 30 of2010)
I assent
J. A. Michel President
25th November, 2010
AN ACT to protect consumers' rights, to impose duties on producers and suppliers ofgoods and services, to repeal the Consumer Protection Act, 1997 and to provide for matters connected therewith.
ENACTED by the President and the National Assembly.
PART I - PRELIMINARY
1. This Act may be cited as the Consumer ProtectionAct, Short title 2010.
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Interpretation 2.(1) In this Act
"acquire", in relation to
(a) goods, includes to obtain by way of gift, purchase or exchange, lease, hire or hire purchase; and
(b) services, includes to accept the rendering or performance ofthose services;
"advertise" means any direct or indirect visual or oral communication transmitted by any medium, or any representation or reference written, inscribed, recorded, encoded upon or embedded within any medium by means of which a person seeks to
(a) bring to the attention of all or part of the public
(i) the existence or identity ofa supplier; or
(ii) the existence, nature, availability, properties or advantages ofany goods or services that are available for supply;
(b) promote the supply of any goods or services, or promote any cause; and
"advertise" is construed accordingly;
"business"
(a) means the carrying on of any commercial activity for gain or reward; and
(b) includes a trade or profession and the activities ofa professional or trade association or ofa public body;
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"Commission" means the Fair Trading Act 17 of2009 Commission established under section 3(1) of the Fair Trading CommissionAct, 2009;
"consumer" means a person
(a) who acquires or offers to acquire goods otherwise than for the purpose of resale but does not include a person who acquires goods for the purpose ofusing them in the production or manufacture of any other goods or articles for sale;
(b) to whom a service is rendered;
"consumer goods" means goods which are ordinarily intended for private use or consumption;
"contract of employment" means a contract of service or apprenticeship, whether it is express or implied, and, if it is express, whether it is oral or in writing as set out in section 21 of the Employment Act 2 of 1995 Act-,
"distance selling regulations" means regulations made under section 27;
"expiry date" means the date stated in relation to goods such as food, drink and medicine being the date by which they are considered unsuitable for sale or consumption;
"goods" includes substances, growing crops and things comprised in land by virtue ofbeing attached to land, and any ship, aircraft or vehicle;
"Minister" means the Minister responsible for trade;
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"personal injury" includes disease and other impairments of a person's physical or mental condition;
"service" means a service of any description, whether industrial, trade, professional or otherwise and
(a) includes the sale ofgoods where the goods are sold in conjunction with the rendering of a service; and
(b) is construed in accordance with subsection (3);
"Seychelles Bureau of Standards" means the Seychelles Bureau of Standards established by
Cap 212 section 3 of the Seychelles Bureau of Standards Act;
"substance" means any natural or artificial substance, whether in solid, liquid or gaseous form or in the form ofa vapour, and includes substances that are comprised in or mixed with other goods;
"supply" includes
(a) in relation to goods
(i) to supply (including re-supply) by way of sale, rent, exchange, lease, hire or hire-purchase or disposal of goods by any other means or an interest therein or a right thereto; or
(ii) to offer to sell, rent, exchange, lease, hire or otherwise dispose ofsuch goods, right or interest;
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(b) in relation to services, to provide, grant or confer services or to offer to provide, grant or confer such services otherwise than under a contract ofemployment; and
"supplier shall be construed accordingly;
"trade or commerce" means trade or commerce within Seychelles or between Seychelles and a place or places outside Seychelles;
"Tribunal" means the Tribunal established under section 44(1) of the Fair Trading Commission Act, Act 17 of2009 2009.
(2) Where it is alleged in any proceeding under this Act that a person was a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is proved, that the person was a consumer in relation to those goods or. services.
(3) A reference in this Act to the supply ofservices does not include a reference to the rendering ofany services under a contract ofemployment.
PART II -FAIR TRADING COMMISSION
3. The Commission is responsible for the Administration administration of this Act and shall carry out its responsibility with the objective ofpromoting and advancing the welfare of consumers by
(a) the achievement and maintenance of a consumer market that is fair, accessible, efficient, sustainable and responsible for the benefit ofconsumers generally;
(b) reducing any disadvantages experienced by consumers, in accessing any supply of goods
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or services, by reason oftheir illiteracy, vision impairment or limited fluency in a particular language;
(c) promoting fair business practices;
(d) protecting consumers from
(i) unconscionable, unfair, unreasonable, unjust or otherwise improper trade practices; and
(ii) misleading, unfair, deceptive or fraudulent conduct.
(e) improving consumer awareness and information, and encouraging responsible and informed consumer choice and behavior;
(f) promoting consumer confidence, empowerment and the development of a culture of consumer responsibility through education and advocacy; and
(g) providing for an accessible, efficient, harmonised, and effective system of redress for consumers.
Functions 4. The Commission shall have such powers as are necessary to enable it to effectively carry out its responsibilities and may, in particular
(a) initiate or receive complaints concerning alleged prohibited conduct, and deal with those complaints in accordance with this Act;
(b) investigate and evaluate complaints or alleged contraventions ofthis Act;
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(c) issue and enforce compliance notices;
(d) accept undertakings and enforce them in accordance with section 76;
(e) conduct hearings and issue such notices, give such orders or directions in accordance with this Act:,
(f) impose remedies or financial penalties;
(g) impose fees;
(h) co-operate with foreign and local authorities;
(i) monitor the consumer market in particular industries or sectors to ensure that prohibited conduct or offences are prevented, detected and prosecuted;
5.(1) The Commission may initiate a complaint Complaint concerning a prohibited conduct.
(2) Any person may
(a) submit information concerning an alleged prohibited conduct, in any manner or form;
(b) make a complaint concerning a prohibited conduct,
to the Commission.
(3) Sections 31 and 32 ofthe Fair Trading Commission Act apply, with such modifications and adaptations as are necessary, to a complaint submitted under subsection (2)
6.(1) The Commission shall investigate a complaint- Investigation by Commission(a) initiated under section 5(1); or
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(b) made under section 5(2).
(2) The Commission may, for the purposes of investigating a complaint
(a) enter and search any premises;
(b) inspect and remove, for the purpose ofmaking copies, any documents or extracts therefrom in the possession or control ofany person; and
(c) upon completing the search authorized by a warrant, leave a receipt listing documents or extracts therefrom that are ren10ved for the purposes ofthis section.
(3) Sections 34 and 35 ofthe Fair Trading Commission Act apply, with such modifications and adaptations as are necessary, to a search and seizure executed under thisAct.
Discontinuation 7.(1) Where the Commission, at any stage of an of investigation investigation under this Act, is of the opinion that the matter
being investigated does not justify further investigation, the Comrriission may discontinue the investigation.
(2) . Where the Commission decides to discontinue an investigation under subsection (1), it shall
(a) within 14 days of the decision, notify the parties concerned; and
(b) within 3 months of such decision submit a report ofthe reasons for the discontinuation to the Minister.
Report 8. Within 30 days after the conclusion of an investigation, the ChiefExecutive Officer of the Commission shall submit a report ofthe investigation to the Commission.
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9.(1) Upon receipt of a report submitted under section 8, the Commission shall convene a hearing.
(2) Part VI of the Fair Trading Commission Act, 2009, applies with such modifications and adaptations as are necessary, to a hearing convened under thisAct.
PART III - UNFAIR CONTRACT TERMS
10. In this Part and the Schedule
"consumer contract" means a contract between a supplier and a consumer where the contract is one
(a) governed by the written laws of Seychelles or to which section 17 applies; and
(b) in which the subject-matter is consumer goods or services;
"contract term" means a term in a consumer contract, being a term that has not been individually negotiated within the meaning ofsection 11.
11.(1) A contract term is not individually negotiated for the purposes ofthisPart or the Schedule ifithas beendrafted in advance and the consumer was not able to influence the substance oftheterm.
(2) Notwithstanding that a specific contract term or any aspect of it is in fact individually negotiated, the terms of the rest of the contract are regarded as terms that have not been individually negotiated for the purposes of this Part, if an assessment of the contract overall shows that the contract is a pre-formulated standard contract.
Convening of heatrings
Act 17 of2009
Interpretation of this Part and Schedule
Terms not individually negotiated
12. It is for a supplier which claims that a contract term Burden of was individually negotiated to showthat it was so negotiated. proof
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Written terms 13.( 1) A supplier shall ensure that a written contract term to be plain and is expressed in plain, intelligible language.intelligible
(2) Where there is a doubt as to the meaning of a written contract term, the interpretation that is most favourable to the consumer shall prevail.
Unfair terms 14. A contract terrn is unfair if it causes a significant imbalance in the rights ofthe supplier and the consumer and is to the detriment ofthe consumer.
Assessment of 15.(1) In determining whether a contract term is unfair, unfairness consideration shall be given to the following
(a) the nature of the goods or services for which the contract is concluded;
(b) all the other terms ofthe contract or ofanother contract on which the first mentioned contract is dependent;
(c) the interests ofthe supplier;
(d) the interests of the particular class of consumers who are likely to adhere to the contract;
(e) all the circumstances surrounding the conclusion of the contract at the time of its conclusion.
(2) In so far as a contract term is in plain, intelligible language, the assessment ofits fairness shall not relate
(a) to the definition of the main subject-matter of the contract; or
(b) to the adequacy ofthe price or remuneration as against the goods or services supplied in exchange.
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(3) Where it is asserted in any proceedings under this Part that a contract term is unfair, it is for the supplier to show that the contract term is not unfair.
(4) Without prejudice to the generality of subsection (1), a contract term which is described in the Schedule is unfair.
16. An unfair contract term is not enforceable against a consumer.
17. Notwithstanding any term in a consumer contract that the governing law of the contract is the law of a country other than Seychelles, or a term to the like effect, this Part shall apply to that contract.
18.(1) Aterm ofa consumer contract, including a term that is not set out in the contract but is incorporated in the contract by a term of the contract, is void if it purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying
(a) the application in relation to that contract of any provision ofthis Part; or
(b) the exercise of a right conferred by any provision ofthis Part.
(2) A term ofa consumer contract is not to be taken as purporting to exclude, restrict or modify the application of a provision of this Part unless the term does so expressly or is inconsistentwith that provision.
PART IV - UNFAIR TRADE PRACTICES
Disclosure and Information
19.(1) Where a person is required in terms of this Act or any other written law to produce, provide or display a notice, document or other visual representation to a consumer, that
Effect of unfair term
Governing law
Application of this Part
Information to be in plain and understandable language
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person shall produce, provide or display such notice, document or visual representation
(a) in the form prescribed by this Act or any other written law; or
(b) in plain language, if no form has been prescribed.
(2) For the purposes of this Act, a notice, document or visual representation is in plain language if it is reasonable to conclude that an ordinary consumer of a class of persons to whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the notice, document or visual representation without undue effort, having regard to
(a) the context, comprehensiveness and consistency of the notice, document or visual representation;
(b) the organisation, form and style of the notice, document or visual representation;
(c) the vocabulary, usage and sentence structure of the notice, document or visual representation; and
(d) the use of any illustrations, examples, headings or other aids to reading and understanding.
(3) The Commission may publish guidelines for methods of assessing whether a notice, document or visual representation satisfies the requirements ofsubsection (1)(b).
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20.(1) Subject to subsection (2), a retailer shall not display Disclosure of prices of goodsany goods for sale without displaying to the consumer a price in and services
relation to those goods.
(2) A retailer is not required to display a price for goods that are displayed predominantly as a form of advertisement of the supplier, or of goods or services in an area within the supplier's premises to which the public does not ordinarily have access.
(3) A price is adequately displayed to a consumer if, in relation to any goods or services, a written indication of the price expressed in the currency ofthe Republic is
(a) annexed or affixed to, written, printed, stamped or located on, or otherwise applied to the goods or to, any band, ticket, covering, label, reel, shelf or other thing used in connection with the goods or on which the goods are mounted for display or exposed for sale;
(b) in any other way represented, from which it may reasonably be inferred that the price is a price applicable to the goods or services; or
(c) published in relation to the goods or services in a catalogue available to the public, if
(i) a time is specified in the catalogue as the time after which the goods or services will not be sold or provided at that price, and that time has not passed; or
(ii) in any other case, the catalogue may reasonably be regarded as not out-of date;
(4) In this section, price includes a unitprice.
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Selling above displayed price and dual pricing
21.(1) Subject to subsections (2) to (5), a person shall not, in trade or commerce, as a supplier, require a customer to pay a price for any goods or services
(a) higher than the displayed price in respect of those goods or services;
(b) in respect of which more than one price is displayed, at a higher than the lower or the lowest ofthe prices displayed.
(2) In subsection (1), a reference to a price displayed in respect to goods or services includes, in addition to prices displayed in the manner described in section 20(3)(a), (b) and(c), a reference to a price
(a) that is used in connection with the goods and services; or
(b) that is determined on the basis of anything encoded on or in relation to the goods;
(3) Subsection (1) does not apply in respect ofthe price of any goods or services if the price of those goods or services is determined by any written law.
(4) Where a price displayed in respect of particular goods is written, stamped or located wholly or partly over another price, or other prices, displayed in respect ofthose goods, all the prices are, for the purposes of subsection (1), prices displayed in respect of the goods but if a price that was once displayed has been fully covered and obscured by a second displayed price, that second price shall be regarded as the displayed price.
(5) It is a defence to a prosecution of a person for a contravention ofsubsection (1) that
• (a) the contravention in respect of which the
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prosecution was instituted was due to the act or default of a person other than a director, employee or agent of the defendant, to an accident or to some other cause beyond the defendant's control; and
(b) the defendant had taken all reasonable precautions and exercised due diligence to avoid the contravention.
(6) A price shall be disregarded for the purposes ofthis section, if
(a) the goods in respect of which the price is displayed are duty-free goods and the price is expressed in a currency other than Seychelles currency; or
(b) the price was displayed in respect of goods outside Seychelles in relation to the supply of the goods outside Seychelles and the supplier has taken all reasonable precautions to cover and obscure thatprice.
(7) If in addition to displaying a price in respect ofany goods or services, a supplier has advertised or displayed a placard or similar device announcing that prices are, will be or have been reduced by
(a) . a monetary value, generally or in relationship to any particular goods or services, the displayed price for the purpose of subsection (1) shall be regarded as the price immediately displayed in relation to the goods or services, minus the announced monetary reduction;
(b) a percentage value, generally or in relation to any particular goods or services, the displayed price for the purpose ofsubsection (1) shall be .
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regarded as the price immediately displayed in relationship to the goods or services, minus an amount determined by multiplying that price by the percentage shown,
unless the supplier has applied two or more prices immediately to the goods or services concerned and the difference between the highest and the lowest ofthose applied prices is equivalent to the advertised or placarded reduction in price. .
(8) In this section, "price", includes any representation that may reasonably be inferred to be a representation of a. pnce.
Product 22.(1) For the purposes ofthis section, "trade description" labelling and means-trade description
(a) any description, statement, or other direct or indirect indication, other than a trademark, as to
(i) the number, quantity, measure, weight or gauge ofany goods;
(ii) the ingredients of which any goods consist, composition, contents of any goods, or material of which any goods are made;
(iii) the mode of manufacturing, processing or producing any goods;
(iv) the name ofthe producer ofany goods;
(v) the place or country of origin of any goods;
(vi) the design, construction, finish or packaging ofthe goods;
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(vii) the expiry date ofthe goods; or
(viii) any goods being the subjectof any patent, privilegeor copyright; or
(b) any figure, work or mark other than a trademark, that, according to the custom ofthe trade, is commonly understood to be an indication of any matter referred to in paragraph (a).
(2) For the purposes ofthis section, a trade description is applied to goods ifit is
(a) woven in, impressed on, worked into or annexed or affixed to the goods;
(b) applied to any covering, label or reel or thing in, on, or with which the goods are packaged, or attached to the goods;
(c) displayed together with, or in proximity to, the goods in a manner likely to lead to the belief that the goods are designated or described by that description; or
(d) contained in any sign, advertisement, catalogue, brochure, circular, wine list, invoice, business letter, business paper or other commercial communication on the basis ofwhich a consumer may request or order the goods.
(3) In subsection (2) (b)
(a) a reference to a covering includes a reference to a stopper, glass, bottle, vessel, box,capsule, case, frame or wrapper; and
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(b) a reference to a label includes a reference to a band or ticket.
(4) Aperson shallnot
(a) .knowingly apply to any goods, a trade description that is likely to mislead the consumer as to any matter implied or expressed in that trade description; or
(b) alter, deface, cover, remove or obscure a trade description applied to any goods in a manner calculated to mislead consumers.
(5) Aretailer ofgoods shall
(a) not offer to supply, display or supply any particular goods if the retailer knows, reasonably could determine, or has reason to suspect that
(i) a trade description applied to those goods is likely to mislead the consumer as to any matter implied or expressed in that trade description; or
(ii) a trade description applied to those goods has been altered as contemplated in subsection (4)(b);
(b) with respect to any goods within the retailer's control, take reasonable steps to prevent any other person from doing anything contemplated inparagraph (a).
(6) The Minister may prescribe
(a) categories ofgoods that are required to have a trade description applied to them, as contemplated in subsection (7);
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(b) the information that is required to be included in any trade description from among the categories of information contained in subsection (1);
(c) the form and manner in which that information is to be applied to the goods; and
(d) the rules to be used, in accordance with any international agreement, for the purpose of determining the country of origin of goods or ofcomponents ofany goods.
(7) The producer or importer of any goods prescribed under subsection (6), shall apply a trade description to those goods, disclosing
(a) the country oforigin ofthe goods;
(b) any other prescribed information.
(8) A person shall not, in trade or commerce, supply any goods prescribed under subsection (6) which do not comply with the requirements imposed under subsection (7).
(9) Subsection (8) does not apply to goods that are intended to be used or consumed outside Seychelles and if there is applied to goods
(a) a statement that the goodsare forexportonly; or
(b) a statement indicating by the use of words authorised by the regulations to be used for the purposes of this section that the goods are intended to be used outside Seychelles,
it shall be presumed for the purposes ofthis subsection, unless the contrary is established, that the goods are intended to be so used.
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Liability for damage caused by goods not complying with prescribed trade description requirements
Expiry dates
Sales records
(l0) Any person who produces, imports, supplies or packages any prescribed goods shall display on, or in association with, the packaging of those goods, a notice in the prescribed manner and form that discloses the presence of any genetically modified ingredients or components of those goods in accordance with any written law.
23. Where a person supplies goods in contravention of section 22(8) by reason that no trade description is applied to the goods or the trade description applied to the goods do not comply with prescribed information, and
(a) another person suffers loss or damage by reason ofnot having particular information in relation to the goods; and
(b) that other person would not have suffered the loss or damage if the trade description had been applied to the goods or the trade description applied to the goods had complied with the prescribed information,
the first mentioned person shall be liable for the loss or damage caused to that otherperson.
24.(1) Aperson shall not offer to supply, display or supply any particular goods at a date later than the expiry date of the goods.
(2) Where a person supplies goods in contravention of subsection (l) and another person suffers loss or damage by reason of the goods not being suitable for consumption, the first mentioned person shall be liable for the loss or damage caused to the other person.
25. (1) A supplier of goods and services shall provide a written record of each transaction to the consumer to whom any goods or services are supplied.
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(2) A record under subsection (1) shall'include-e
. (a) the supplier's full name or registered business name;
(b) the address of the premises at which, or from which, the goods or services were supplied;
(c) the date on which the transaction occurred;
(d) the name or description of any goods or services supplied;
(e) the unit price of any particular goods or services supplied;
(f) the quantity ofany particular goods or services supplied; .
(g) the total price of the transaction, before any applicable taxes;
(h) the amount ofany applicable taxes;
(i) the total price ofthe transaction, including any applicable taxes.
(3) The Minister may, by notice in the Gazette, exempt categories of goods and services, or circumstances of trade from the application ofthis section.
26. A person shall not, in trade or commerce, in Full cost to be stated inconnection with the supply or possible supply of goods or certain
services or in connection with the promotion by any means of cases the supply of goods or services, make a representation with respect to an amount that, ifpaid, would constitute a part ofthe consideration for the supply ofthe goods or services, unless
(a) where the transaction is not a credit
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transaction, it also specifies the cash price of the goods or services;
(b) where the transaction is a credit transaction, it also specifies
(i) the total sum to be paid for the goods or. services;
(ii) the number of installments by which payment is to be made;
(iii) the rate of interest that will be charged; and
(iv) the deposit, ifany, that must be made.
Fair and responsible marketing
Bait 27.(1) A person shall not, in trade or commerce, as a advertising supplier, advertise for supply at a special price, of goods or
services that the person does not intend to offer for supply, or that the person has no reasonable grounds for believing that the person can supply, at that price, for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the person carries on business and the nature ofthe advertisement.
(2) A person who or which has a limited stock of goods or whose capacity to supply services is limited, does not contravene subsection (1) if the person states in the advertisement mentioned in that subsection that the person's stock of the goods or the person's capacity to supply the services, as the case may be, is limited.
Distance 28.(1) The Minister may, after consulting the selling Commission, make such regulations as the Minister considers
appropriate for the purpose ofprotecting consumers in relation to distance contracts.
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(2) Without prejudice to the generality of subsection (1), distance selling regulations may contain provisions
(a) regulating advertising and marketing conducted by way of distance contracts including advertising and marketing by mail order or doorstep selling ofbusiness;
(b) with respect to the information that must be supplied to a person to whom distance contracts are offered;
(c) with respect to the transparency, clarity and fairness ofdistance contracts;
(d) requiring information to be given to any person or as may be determined by or under the regulations for the purpose ofenabling that person to exercise any powers conferred on it by the regulations.
(3) Inthissection
"distance contract" means a contract concerning goods or services concluded between a supplier and a consumer under a scheme operated by the supplier, which, for the purposes of the contract, makes exclusive use of one or more means of distance communication up to and including the point at which the contract is concluded;
"means of distance communication" means a means which, without the simultaneous presence of the supplier and the consumer, may be used for the conclusion ofa contractbetween the parties.
29. A person shall not, in trade or commerce, as a Referral sellingsupplier, induce a consumer to acquire goods or services under
a contract by representing that the consumer will, after the
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Misleading or deceptive conduct
Misleading or deceptive conduct in relation to goods and services
False representations
contract is made, receive a rebate, commission or other benefit in return for giving that person the names of prospective customers or otherwise assisting that person to supply goods or services to other consumers, if the receipt of the rebate, cornnlission or other benefit is contingent on an event occurring after the contract is made.
Fair and honest dealing
30.(1) A person shall not, in trade or commerce in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services, engage in conduct that is, or is likely to be, misleading or deceptive.
(2) Nothing in this Part is to be construed as limiting the generality ofsubsection (1).
31. A person shall not, in trade or commerce in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use ofgoods or services, engage in conduct that is liable to mislead or deceive the public as to~
(a) the nature, manufacturing process, characteristics, suitability for a purpose, or quantity ofgoods; or
(b) the nature, characteristics, suitability for a purpose, or quantity, ofservices.
32. A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use ofgoods or services
(a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or a particularprevious use;
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(b) falsely represent that services are of a particular standard, quality, value or grade;
(c) falsely represent that goods are new;
(d) falsely represent that a particular person has agreed to acquire goods or services;
(e) represent that goods or services have sponsorship, approval, affiliation, performance, characteristics, accessories, uses or benefits that they do not have;
(f) make a false or misleading representation concerning the price ofany goods or services;
(g) make a false or misleading representation concerning the need for any goods, services, replacements or repairs, or concerning the availability offacilities for the repair ofgoods or the availability ofspare parts for goods;
(h) make a false or misleading representation concerning the place oforigin ofgoods; or
(i) make a false or misleading representation concerning the existence, exclusion or effect ofany condition, warranty, guarantee, right or remedy relating to goods or services.
33.(1) A person shall not, in trade or commerce, in Inequitable conduct inconnection with the supply or possible supply of goods or consumer
services to another person, engage in conduct that is, in all the transactions circumstances, inequitable.
(2) Without in any way limiting the matters to which the Commission may have regard for the purpose of determining whether a person has contravened subsection (1)
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in connection with the supply or possible supply of goods or services to the consumer, the Commission may have regard to
(a) the relative strengths of the bargaining positions ofthe person and the consumer;
(b) whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests ofthe person;
(c) whether the consumer was able to substantially protect his or her interests in view of a physical or mental disability, illiteracy, ignorance or inability to understand the language ofan agreement;
(d) whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services;
(e) whether any undue influence or pressure was exerted on, or any physical force, coercion, duress, harassment or unfair tactics were used against, the consumer or a person acting on behalfofthe consumer by the supplier or other person acting on behalf of the supplier, in relation to the supply or possible supply ofthe goods or services;
(f) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from another supplier.
(3) A person shall not be taken for the purposes ofthis section to engage in inequitable conduct in connectionwith the
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supply or possible supply of goods or services to another person by reason only that the other person institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.
(4) For the purpose of determining whether a person has contravened subsection (1) in connection with the supply or possible supply ofgoods or services to any other person, the Commission
(a) shall not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) may have regard to conduct engaged in or circumstances existing before the commencement ofthis Act.
(5) A reference in this section to goods or services is a reference to goods or services ofa kind ordinarily acquired for personal, domestic or household use or consumption.
(6) A reference in this section to the supply or possible supply of goods does not include a reference to the supply or possible supply ofgoods for the purpose ofre-supply or for the purpose ofusing or transforming them in trade or commerce.
34.(1) A person shall not, in trade or commerce, in Inequitable conduct inconnection with business transactions
(a) the supply or possible supply of goods or services to anotherperson; or
(b) the acquisition or possible acquisition of goods or services from another person,
engage in conduct that is, in all the circumstances, inequitable.
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(2) Without in any way limiting the matters to which the Commission may have regard for the purpose of determining whether a person (the supplier) has contravened subsection (1) in connection with the supply or possible supply of goods or services to a person (the business consumer), the Commission may have regard to
(a) the relative strengths of the bargaining positions of the supplier and the business consumer;
(b) whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests ofthe supplier;
(c) whether the business consumer was able to substantially protect his or her interests in view of a physical or mental disability illiteracy, ignorance or inability to understand the language ofan agreement;
(d) whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or. services;
(e) whether any undue influence or pressure was exerted on, or any physical force, coercion, duress, harassment or unfair tactics were used against, the business consumer or a person
.acting on behalf of the business consumer by the supplier or other person acting on behalfof the supplier, in relation to the supply or possible supply ofthe goods or services;
(t) the amount for which, and the circumstances
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under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier;
(g) the extent to which the supplier's conduct towards the business consumer was consistent with the supplier's conduct in similar transactions between the supplier and other like business consumers;
(h) the requirements of any applicable industry code;
(i) the requirements ofany other industry code, if the business consumer acted on the reasonable beliefthat the supplier would comply with that code;
G) the extent to which the supplier unreasonably failed to disclose to the business consumer
(i) any intended conduct ofthe supplier that might affect the interests ofthe business consumer;
(ii) any risks to the business consumer arising from the .supplier's intended conduct, being. risks that the supplier should have foreseen would not be apparent to the business consumer;
(k) the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the goods or services with the business consumer; and
(1) the extent to which the supplier and the business consumer acted in good faith.
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Offering 35. A person shall not, in trade or commerce, in gifts and connection with the supply or possible supply of goods orprizes
services or in connection with the promotion by any means of the supply ofgoods or services, offer a gift, prize or other free item with the intention ofnot providing the gift, prize or other free item as offered.
Dishonestly 36. A person shall not, in trade or commerce, as a accepting payment supplier, accept payment or other consideration. for goods or
services where at the time ofthe acceptance
(a) the person does not intend to supply the goods. or services; or
(b) the person intends to supply goods or services materially different from the goods or services in respect of which the payment or other consideration is accepted.
Pyramid selling 37. (1) A person shall not promote or operate a pyramid scheme selling scheme.
(2) For the purposes of this section, "pyramid selling scheme" means a scheme
(a) that provides for the supply of goods or services or both for reward;
(b) that, to many participants, constitutes primarily an opportunity to sell an investment opportunity rather than an opportunity to supply goods or services; and
(c) that is unfair, or is likely to be unfair, to many ofthe participants in that
(i) the financial rewards of many of the participants are dependent on the recruitment ofadditional participants;
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(ii) the number of additional participants that must be recruited to produce reasonable rewards to participants is either not attainable, or is not likely to be attained, by many ofthe participants.
(3) In subsection (2), "participants" means participants in the pyramid selling scheme.
Right to choose
38.(1) For the purposes of this Act, subject to subsection (2), goods and services are unsolicited in any ofthe following circumstances
(a) if, during any direct marketing of goods or services, a supplier or a person acting on behalfofa supplier has left any goods with, or performed any service for, a. consumer without requiring or arranging payment for them, those goods or services, as the case may be, are unsolicited;
(b) if a consumer is a party to an agreement contemplating the periodic delivery of goods during the life ofthe agreement, and
(i) during the course of that agreement, the supplier introduces goods or services that are materially different from the goods or services previously supplied to an extent not reasonably contemplated in the agreement, the new goods or services are unsolicited, unless the consumer expressly consented to the material change; or
(ii) after the termination of that agreement, the supplier delivers any further goods to
Unsolicited goods or services
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the consumer, other than in terms of a different agreement or transaction, those further goods are unsolicited goods;
(c) if a supplier delivers goods or performs services at a location, date or time other than as agreed, and the consumer has rejected that delivery or performance, those goods or services are unsolicited; or
(d) if any goods have been delivered to, or any services performed for, a consumer by or on behalf of a supplier without the consumer having expressly or implicitly requested that delivery or performance, the goods or services, as the case may be, are unsolicited.
(2) Notwithstanding subsection (1), if
(a) within 10 days after delivery ofany goods to a consumer, the supplier informs the consumer that the goods were delivered in error, those goods become unsolicited only if the supplier fails to recover them within 20 business days after so informing the consumer; or
(b) any goods are delivered to a consumer and
(i) those goods are clearly addressed to another person, and have obviously been misdelivered; or
(ii) having regard to the circumstances of the delivery, it would be apparent to the ordinarily alert consumer that the goods were intended to be delivered to another person,
the goods become unsolicited goods only if the recipient gives notice to the apparent supplier or the
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deliverer that the goods were misdelivered, in accordance with subsection (13), and the goods are not recovered within the following 20 business days.
(3) A person in possession of goods contemplated in this section
(a) shall not frustrate or impede any reasonable action of the supplier or deliverer to recover the goods within the time allowed in subsection (2);
(b) is not liable to make any payment for the goods. or services;
(c) is not responsible for any cost pertaining to the storage or recovery of the goods or further delivery ofthem to anotherperson;
(d) is not liable for any loss of or damage to the goods during the time they are in the person's control or possession, other than loss or damage resulting from the doing by the first mentioned person ofa willful and unlawful act in relation to the goods.
(4) Aperson who fails to comply with subsection (3)(a) is liable to the supplier or deliverer, as the case may be, for any additional costs ofrecovery ofor damage to, the goods arising as a result of anything done to frustrate or impede the lawful recovery ofthe goods.
(5) A person in possession ofunsolicited goods may
(a) retain the goods; or
(b) return the goods to the apparent supplier or deliverer at the risk and expense of the supplier or deliverer, as the case may be.
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(6) Where a person retains any unsolicited goods under subsection (5)(a)
(a) the property in those goods passes unconditionally to the person, subject only to any right or valid claim that an uninvolved third party may have with respect to those goods;
(b) the person who supplied or delivered those goods is liable to any other person in respect of any right or valid claim relating to such goods.
(7) A person has no obligation to pay a supplier for unsolicited goods or services, or a deliverer, for the cost of delivery ofany unsolicited goods.
(8) If a consumer has made any payment to a supplier or a deliverer in respect of any charge relating to unsolicited goods or services, or the delivery of any such goods, the consumer is entitled to recover that amount with interest from the date on which itwas paid to the supplier.
(9) A supplier is liable to pay the recipient of unsolicited goods such reasonable costs as are incurred in respect ofthe storage ofthose goods.
(10) A person shall not, in trade or commerce, as a supplier, demand or assert any right to, or attempt to collect, any payment from another person in respectof
(a) any charge relating to unsolicited goods left in the possession ofthat person or the delivery of any such goods; or
(b) unsolicited services supplied to or for the benefit ofthat otherperson,
except as provided by subsection (4).
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(11) For the purposes of this section, a person shall be deemed to assert a right to a payment from another person for unsolicited goods or services ifthe first-mentioned person
(a) makes a demand for the payment, or asserts a present or prospective right to the payment;
(b) threatens to bring any legal proceeding with a view to obtaining the payment;
(c) places or causes to be placed the name of the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment;
(d) invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or
(e) sends any invoice or other document stating the amount of the payment or setting out the price ofthe goods or services and not stating as prominently, or more prominently, that no claim is made to the payment or to payment of the price.
(12) In the case of a contravention constituted by asserting a right to payment from a person for unsolicited goods or services, the burden lies on the defendant ofproving that the defendant had reasonable cause to believe that there was a right to payment.
(13) A notice under subsection (2) (b) shall be in writing and shall
(a) state the name and address of the person who or which received the goods;
(b) state the address at which possession may be
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taken ofthe goods if it is an address other than stated under paragraph (a); and
(c) contain a statement to the effect that the goods are unsolicited goods.
PART V - FAIR VALUE, GOOD QUALITY AND SAFETY
Interpretation 39.(1) InthisPart of this Part .
"agricultural produce" means any produce, whether of the soil or otherwise, of stock-farming or offisheries;
"defect" in relation to any goods or a service, means
(a) any material imperfection in the manufacture of the goods or components thereof, or in the performance of the service, that renders the goods or the results of the service less acceptable than persons generally would be reasonably entitled to expect in the circumstances; or
(b) any characteristic ofthe goods or components thereof that renders the goods or components less useful, practicable or safe than persons would generally be reasonably entitled to expect inthe circumstances; and
"defective" is construed accordingly;
"failure" means the inability of the goods to perform in the intended manner or to the intended effect;
"hazard" means a characteristic
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(a) that has been identified as, or declared to be, a hazard under any other law;
(b) that presents a significant risk of personal injury to any person, or damage to property, when the goods are utilised;
"unsafe" means that, due to a characteristic, failure, defect or hazard, particular goods present an extreme risk ofpersonal injury or property damage to the consumer or to other persons;
"to manufacture", in relation to animals or agricultural produce, includes to rear or grow;
"producer", in relation to particular goods, means
(a) the person who or which manufactures the goods;
(b) in the case of a substance which has not been manufactured but has been won or abstracted, the person who or which won or abstracted the substance;
(c) in the case of a product which has not been manufactured, won or abstracted but initial characteristics of which are attributable to an industrial or other process having been carried out, for example, in relation to agricultural produce, the person who or which carried out that process;
"goods" means any goods, including animals or agricultural produce reared or grown for supply, and, subject to subsection (2), includes a product which is comprised in another product, whether by virtue ofbeing a component part or raw material or otherwise.
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(2) For the purposes ofthis Part, a person who or which supplies any goods in which other products are comprised, whether by virtue ofbeing component parts or raw materials or otherwise, shall not be treated by reason only of its supply of the goods as supplying any ofthe otherproducts so comprised.
Standards for 40.(1) Subject to this Part, where a supplier undertakes to performance perform any service for or on behalf of a consumer, theof services
supplier shall
(a) perform and complete that service in a timely manner and give to the consumer timely notice of any unavoidable delay in the performance ofthe service;
(b) perform the service in a manner and of a quality that persons are generally entitled to expect;
(c) where goods are required for performance of the service, use, deliver or install such goods that are free ofdefects and are ofa quality that persons are generally entitled to expect; and
(d) return any property or control over any property of the consumer in at least as good a condition as it was when the consumer made it available to the supplier for the purpose of supplying the service,
having regard to the circumstances of the supply and any specific criteria or condition agreed between the supplier and the consumer before or during the performance ofthe service.
(2) Where a supplier fails to perform a service to the standards specified in subsection (1), the supplier shall at the direction ofthe consumer
(a) remedy any defect in the quality of the services performed or the goods supplied; or
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(b) refund to the consumer a reasonable portion of the price paid for the service performed and goods supplied, having regard to the extent of the failure.
(3) Subsection (2) does not apply where the failure of the supplier to perform a service to the standards specified in subsection (1) is due to
(a) the act or default ofanother person; or
(b) to an accident or a cause beyond the control of the supplier.
41.(1) Where a consumer or other person suffers any damage wholly or partly as a result ofthe failure ofa supplier to perform a service to the standards specified in subsection (1), of section 40 the supplier is liable to the consumer or other person for the damage.
(2) Liability under subsection (1) ofsection 40 does not arise in the circumstances referred to in section 40(3).
(3) Damage for which a person may be held liable under this section includes
(a) the death of, or personal injury to, any person; or
(b) an illness ofany person; or
(c) any loss ofor physical damage to any property, including land; and
(d) any economic loss that results from damage specified in paragraphs (a), (b) or (c).
42.(1) Subject to this Part, where a consumer acquires any goods, otherwise than by way ofsale by auction, -
Liabilityfor damage due to failure to perform services to required standard
Warranty for unsuitable, defective and unsafe products
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(a) for the purpose for which such goods are generally intended and the goods are not reasonably fit for that purpose;
(b) for a particular purpose, whether or not that is apurpose for which such goods are commonly supplied, that was expressly or by implication made known to the supplier of the goods, either directly or through another person from whom the consumer acquired the goods or by whom any prior negotiations in connection with the acquisition of the goods were conducted, and the goods are not reasonably fit for that purpose;
(c) which are not ofgood quality, in good working order or defective;
(d) are not useable or durable for a reasonable period oftime, having regard to the use,
the consumer may, within 6 months after delivery ofthe goods, return the goods to the supplier, without penalty and at the supplier's risk and expense, and the supplier shall refund to the consumer any costs associated with the use, installation or delivery ofthe goods, and at the direction ofthe consumer,
(i) unless the goods are not reasonably fit for the purpose referred to in paragraph (a) or (b), repair the goods within 60 days of the return of the goods to the supplier;
(ii) replace the goods within 7 days of the return of the goods to the supplier or such longer period as agreed by the parties; or
(iii) refund tothe consumer the price paid for
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the goods, within 24 hours of the return ofthe goods to the supplier.
(2) In determining whether the matters referred to in subsection (l)(a), (b), (c) and (d) are applicable in respect of any particular goods, all the circumstances of the supply of those goods shall be taken into account, including
(a) the manner in which and purposes for which the goods were marketed, packaged and displayed, their composition or structure, the use ofany trade description or mark in relation to the goods and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the goods;
(b) what might reasonably be expected to be done with or in relation to the goods; and
(c) the time when the goods were produced and supplied.
(3) For the purposes of the application of subsection (2)
(a) it is irrelevant whether a product failure or defect was latent or apparent, or whether it could have been detected by a consumer before taking delivery ofthe goods; and
(b) a product failure or defect may not be inferred in respect of particular goods solely on the grounds that better goods have subsequently become available from the same or any other producer or supplier.
(4) Subsection (l)(a), (b) and (c) 'do not apply to a transaction ifthe consumer
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Warranty on repairedgoods
(a) has been expressly informed that particular goods were offered in a specific condition; and
(b) has expressly agreed to accept the product in that condition, or knowingly acted in a manner consistentwith accepting the goods in that condition.
(5) Subsection (1) does not apply where the goods have been altered contrary to the instructions, or after leaving the control ofthe supplier.
(6) Ifa supplier repairs any goods or any component of any such goods pursuant to subsection (1) (i), and within 3 months of that repair, the failure, defect or unsafe feature has not been remedied, or a further failure, defect or unsafe feature is discovered, the supplier shall
(a) replace the goods; or
(b) refund to the consumer the price paid by the consumer for the goods.
(7) The warranty imposed by this section and the right to return any goods or to a refund ofthe price ofthe goods are in addition to
(a) any other warranty or condition imposed by any other written law; and
(b) any warranty or condition stipulated by the supplier.
43.(1) A person who carries on any repair or maintenance work warrants any new or reconditioned part installed during the course ofany such work and the labour required to install it, for a period of 6 months after the date of installation or such longer period as the supplier may specify in writing.
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(2) Awarranty in terms ofthis section
(a) is concurrent with any other implied or express warranty;
(b) is void if the consumer has subjected the part, or the goods or property in which it was installed, to misuse or abuse; and
(c) does not apply to ordinary wear and tear, having regard to the circumstances in which the goods are intended to ordinarily be used.
44.(1) The supplier of any activity or facility that is subject to any risk
(a) ofan unusual character or nature;
(b) which a consumer could not reasonably be expected to be aware ofor notice, or which an ordinarily alert consumer could not reasonably be expected to notice or contemplate, in the circumstances; or
(c) that could result in serious injury or death,
shall specifically draw the fact, nature and potential effect of that risk to the attention of consumers by means of a notice to the consumer or a provision in a consumer agreement and in a manner that satisfies the requirements of subsections (2), (3) and (4), and the consumer shall have assented to that provision or notice by signing or initialling the provision or otherwise acting in a manner consistent with acknowledgement of the notice or acceptance ofthe provision and awareness ofthe risk.
(2) A condition, provision or notice referred to in subsection (l) shall be written in plain language in accordance with section 19.
Warning concerning fact and nature of risks
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(3) The fact, nature or effect of the provision or notice referred to in subsection (1), shall be drawn to the .attention of the consumer
(a) in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert consumer, having regard to the circumstances; and
(b) before the earlier of the time at which the consumer
(i) enters into the transaction or agreement, begins to engage into the activity, or enters or gains access to the facility; or
(ii) is required or expected to offer consideration for the transaction or agreement.
(4) The consumer shall be given an adequate opportunity in the circumstances to receive and comprehend the provision or notice referred to in subsection (1).
(5) A person who packages any hazardous or unsafe goods for supply to consumers shall display on or within that packaging a notice that complies with the requirements of section 19, and any other applicable standards, providing the consumer with adequate instructions for the safe handling and use ofthose goods.
(6) Subsection (5) does not apply to hazardous and unsafe goods to the extent that a substantially similar label or notice has been applied in terms ofany other written law.
(7) A person who installs any hazardous or unsafe goods referred to in subsection (5) for a consumer, or supplies any such goods to a consumer in conjunction with the performance of any services, shall give the consumer the original copy of
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(a) any document required in terms of that subsection; or
(b) any similar document applied to those goods interms ofany written law.
45.(1) Subject to this Part, where any damage is caused Liabilityfor damage causedwholly or partly by . by unsafe, unsuitable and . defective goods(a) any unsafe goods;
(b) a product failure or defect, or a hazard in any goods; or
(c) inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods,
every person to whom or which subsection (3) applies is liable for the damage, irrespective of whether the damage resulted from any negligence on the part ofany ofthose persons.
(2) The goods referred to in subsection (l) includes any such goods which are applied, supplied, installed or to which access is provided in conjunction with the performance of services.
(3) This subsection applies to
(a) the producer ofthe goods;
(b) any person who or which, by putting the person's name on the product or using a trade mark or other distinguishing mark in relation to the goods, holds the person out to be the producer ofthe goods;
(c) any person who or which in the course of the
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person's business imports the goods into Seychelles, to supply it to another person.
(4) Where two or more persons are liable for the same damage by virtue of this section, their liability is joint and several.
(5) Liability of a particular person under this section does not arise if
(a) the unsafe product characteristic, failure, defect or hazard that causes the damage is attributable to compliance with
(i) a requirement imposed by or under any laws ofSeychelles; or
(ii) a mandatory standard for the product;
(b) the alleged unsafe product characteristic, failure, defect or hazard did not exist in the goods at the time it was supplied by that person to anotherperson alleged to be liable or to the person who suffered the damage;
(c) the person did not at any time supply the product to anotherperson;
(d) the following conditions are satisfied, that is to say
(i) that the only supply of the product to another by the person was otherwise than in the course of a business of that person;
(ii) that subsection (3) does not apply to the person, or applies to that person by virtue only ofthings done otherwise than with a view to profit;
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(e) that the state of scientific and technical knowledge, at the time that the person supplied the goods to another person alleged to be liable, or to the person who suffered the damage, was not such that a producer ofgoods of the same description as the goods in
. question, might be expected to have discovered the unsafe product characteristic, failure, defect or hazard, ifit had existed in the producer's goods while they were under the producer's control; or
(f) that the unsafe product characteristic, failure, defect or hazard
(i) constituted an unsafe product characteristic, failure, defect or hazard in a product, in this paragraph referred to as "the subsequent product", in which the goods in question had been comprised; and
(ii) was wholly attributable to the design of the subsequent product, the markings on or accompanying the subsequent product or to compliance by the producer of the goods in question with instructions or warnings given by the producer ofthe subsequentproduct.
(6) Damage for which a person may be held liable under this section includes
(a) the death or personal injury to any person; or
(b) an illness ofany person; or
(c) any loss ofor physical damage to any property, including land; and
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Unidentified manufacturer
(d) any economic loss that results from damage specified inparagraphs (a), (b) or (c).
(7) In determining for the purposes ofthis section who has suffered any damage to property and when any such damage occurred, the damage shall be regarded as having occurred at the earliest time at which a person with an interest in the property had knowledge of the material facts about the damage.
(8) For the purposes of subsection (7), the material facts about any damage to any property are such facts about the damage as would lead a reasonable person with an interest in the property to consider the damage sufficiently serious to justify the person's instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy ajudgment.
(9) For the purposes of subsection (8), a person's knowledge includes knowledge which the person might reasonably have been expected to acquire
(a) from facts observable or ascertainable by the person; or
(b) from facts ascertainable by the person with the help of appropriate expert advice which it is reasonable for the person to seek,
but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable by that person only with the help of expert advice unless the person 'has failed to take all reasonable steps to obtain and, where appropriate, to act on that advice.
46.(1) Where a person is liable by virtue of section 45, a person who or which supplies the goods who or which gave rise to the liability, whether to the person who or which suffered the damage, to the producer ofa product in which the
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goods in question are comprised, or to any other person, is liable for the damage if
(a) the person who or which suffered the damage serves a written request to the supplier to identify
(i) one or more of the persons, whether still in existence or not, to whom or which sections 45(3) applies, in relation to the goods; or
(ii) the person who supplied the goods to the supplier on whom the request is served;
(b) that request is made within a reasonable time after the damage occurs; and
(c) the supplier fails, within 30 days after being served with the request, either to comply with the request or to identify the person who or which supplied the goods to the supplier.
(2) For the purposes of this section, a supplier of services who, in conjunction with the performance of those services, applies, supplies, installs or provides access to any goods, is regarded as a supplier ofthose goods to the consumer.
47. The liability of a person by virtue of this Part to a person who has suffered damage caused wholly or partly by an unsuitable or defective product, or to a dependant or relative of such a person, shall not be limited or excluded by any contract term, notice or any other written law.
48.(1) Subject to subsection (2), the Supreme Court has jurisdiction to hear and determine a claim for damages instituted under sections 41 and 45.
Prohibition on exclusion of liability
Jurisdiction and time limit for bringing action
(2) The Commission may hear and determine a claim
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instituted under sections 41 and 45 for loss of or physical damage to property but the Commission shall not hear or determine any claims for death or personal injury.
(3) A claim for damages under section 41 and 45 shall not be instituted
(a) before the Commission or the Supreme Court more than 5 years after the occurrence of the damage; .
(b) before the Supreme Court if a claim for substantially the same nature ofdamages has been dealt with by the Commission;
(c) before the Commission if a claim for substantially the same nature of damages has been determined by the Supreme Court.
PART VI - CONSITMER SAFETY
Interpretation 49.(1) In this Part- of this Part
"safe" in relation to any goods, means that there is no risk, or no risk apart from one reduced to a minimum, that any of the following will, whether immediately or after a definite or indefinite period cause the death of, or any personal injury to, any person, that is to say
(a) the goods;
(b) the keeping, use or consumption ofthe goods;
(c) the assembly ofany ofthe goods which are, or are to be, supplied unassembled;
(d) the emission or leakage from the goods or, from anything else as a result of the keeping, use or consumption ofthe goods;
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(e) the reliance on the accuracy of any measurement, calculation or other reading made by,or by means of, the goods.
(2) In the definition of "safe" in subsection (1) references to the keeping, use or consumption ofany goods are references to
(a) the keeping, use or consumption of the goods by the persons by whom and in all or any ofthe ways or circumstances in which they might reasonably be expected to be kept, used or consumed; and
(b) the keeping, use or consumption of the goods either alone or in conjunction with other goods in conjunction with which they might reasonably be expected to be kept, used or consumed.
50.(1) Aperson shall not, in trade or comn1erce- General safety requirement
(a) supply any consumer goods which fail to comply with the general safety requirement;
(b) offer or agree to supply any goods referred to inparagraph (a); or
(c) expose or possess any goods referred to in paragraph (a).
(2) For the purposes of this section, consumer goods fail to comply with the general safety requirement if they are not reasonably safe having regard to all the circumstances, including
(a) the manner in which, and the purposes for which, the goods are being or would be marketed, their composition or structure, the
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use of any mark in relation to the goods and any instructions or warnings which are given or would be given with respect to the keeping, use or consumption ofthe goods;
(b) (i) any mandatory standard specification declared by the Seychelles Bureau of Standards; or
(ii) any standards ofsafety published by any person or authority, and having legal effect as published,
either for goods ofa description which applies to the goods in question or for matters relating to goods ofthat description; or
(c) the existence of any means by which it would have been reasonable for the goods to have been made safer.
(3) For the purposes of this section, consumer goods shall not be regarded as failing to comply with the general safety requirement in respectof
(a) anything which is shown to be attributable to compliance with any requirement imposed by or under any written law applicable in Seychelles; or
(b) any failure to do more in relation to any matter than is required by
(i) any mandatory standard specification referred to in subsection(2)(b)(i) or any standards of safety referred to in subsection (2)(b)(ii) and imposing requirements with respect to that matter; or
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(ii) any provision of any enactment imposing such requirements with respect to that matter as are designated by any such enactment.
(4) In any proceedings against a person for contravention of subsection (1), in respect of any goods, it is a defence for thatperson to show
(a) that the person reasonably believed that the goods would not be used or consumed in Seychelles; or
(b) that both of the following conditions are satisfied
(i) that the person supplied the goods, offered or agreed to supply them or, as the case may be, exposed or possessed them for supply in the course ofcarrying on a retail business;
(ii) that, at the time the person supplied the goods or agreed or offered to supply them, or exposed or possessed them for supply, the person neither knew nor had reasonable grounds for believing that the goods failed to comply with the general safety requirement.
(5) For the purposes of subsection (4)(b), goods are supplied in the course ofcarrying on a retail business if
(a) whether or not they are acquired for a person's private use or consumption, they are supplied in the course of carrying on a business of supplying consumer goods to persons who generally acquire them for private use or consumption; and
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(b) the descriptions of goods which are supplied in the course of that business do not, to a significant extent, include manufactured or imported goods which have not previously been supplied in Seychelles.
Liability for damages caused by goods not complying with general safety requirement
51. Where a person supplies goods in contravention of section 49(1)(a) by reason that the goods do not comply with a general safety requirementand
(a) another person suffers loss or damage by reason of a defect in, or a dangerous characteristic ofthe goods, or by reason ofnot having particular information in relation to the goods; and
...
(b) that other person would not have suffered the loss or damage ifthe goods had complied with the general safety requirement,
the first mentioned person shall be liable for the loss or damage caused to that otherperson.
Prohibition and warning notices
52.(1) The Commission may
(a) serve on any person a notice prohibiting that person,except with the Commission's consent, from supplying, or from offering to supply, agreeing to supply, exposing for supply or possessing for supply, any goods which the Commission considers are unsafe and which are described in the notice;
(b) serve on any person a notice requiring that person at the person's own expense to publish, in a form and manner and on occasions specified in the notice, a warning about goods which the Commission considers are unsafe,
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being goods which that person supplies or has supplied and which are described in the notice.
(2) Regulations made under section 80 may make provision with respect to prohibition notices and warning notices, and may prescribe the manner in which information be given to any person.
(3) A consent given by the Commission for the purposes of a prohibition notice under subsection (l)(a) may impose such conditions on the doing ofanything for which the consent is required as the Commission considers appropriate.
(4) A person who contravenes a prohibition notice or a warning notice commits an offence and is liable on conviction to be punished under section 70.
53.(1) Ifthe Commission considers that, for the purpose of Notice to producedeciding whether- information
(a) regulations under section 80 need to be made, varied or revoked; or
(b) a prohibition notice needs to be served, varied or revoked; or
(c) a warning notice needs to be served or revoked,
the Commission needs information which another person is able to furnish, it may serve on that other person a notice under this section.
(2) A notice served on a person under this section may require thatperson
(a) to furnish to the Commission, within a period specified in the notice, such information as is so specified;
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(b) to produce such records as are specified in the notice at a time and place so specified, and to permit a person appointed by the Commission for the purpose to take copies ofthe records at that time and place.
(3) Apersonwho
(a) fails, without reasonable cause, to comply with a notice served on the person under this section; or
(b) in purporting to comply with a requirement which by virtue ofparagraph (a) ofsubsection (2) is contained in such a notice
(i) furnishes information which the person . knows is false in a material particular; or
(ii) recklessly furnishes information which is false in a material particular,
commits an offence.
Compulsory 54.(1) Where a person, in trade or commerce, supplies recall of goods goods that are intended to be used or are ofa kind likely to be
used by a consumerand
(a) it appears to the Commission that the goods are ofa kind which will or may cause injury to any person;
(b) the goods are of a kind in respect of which there are standards referred to in section 50(2)(b)(i) or (ii), and the goods do not comply with those standards; or
(c) the goods are of a kind in relation to which there is in force a notice under section 52 (l)(a) or (b),
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(b) to produce such records as are specified in the notice at a time and place so specified, and to permit a person appointed by the Commission for the purpose to take copies ofthe records at that time and place.
(3) Apersonwho
(a) fails, without reasonable cause, to comply with a notice served on the person under this section; or
(b) in purporting to comply with a requirement which by virtue ofparagraph (a) ofsubsection (2) is contained in such a notice
(i) furnishes information which the person knows is false in a material particular; or
(ii) recklessly furnishes information which is false in a material particular,
commits an offence.
Compulsory 54.(1) Where a person, in trade or commerce, supplies recall of goods goods that are intended to be used or are ofa kind likely to be
used by a consumerand- .
(a) it appears to the Commission that the goods are ofa kind which will or may cause injury to any person;
(b) the goods are of a kind in respect of which there are standards referred to in section 50(2)(b)(i) or (ii), and the goods do not comply with those standards; or
(c) the goods are of a kind in relation to which there is in force a notice under section 52 (1)(a) or (b),
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and it appears to the Commission that the supplier has not taken satisfactory action to prevent the goods causing injury to any person, the Commission shall by notice in writing served on the supplier, which notice shall be published in at least one daily newspaper, require the supplier ofthe goods to do one or more ofthe following
(i) take action within the period specified in the notice to recall the goods;
(ii) disclose to the public, or to a class of persons specified in the notice, in the manner and within the period specified in the notice, one or more of the following
(aa) the. nature of a defect in, or a dangerous characteristic of, the goods specified in the notice;
(bb) the circumstances, being circumstances specified in the notice, in which the use of the goods is dangerous;
(cc) procedures for disposing of the goods specified in the notice;
(iii) inform the public, or a class of persons specified in the notice, in the manner and within the period specified in the notice, that the supplier undertakes to do whichever of the following the supplier thinks is appropriate
(aa) except where the notice specifies a dangerous characteristic of the goods, repair the goods;
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(bb) replace the goods;
(cc) refund to the person to whom the goods were supplied, whether by the supplier or by another person, the price ofthe goods,
within the period specified in the notice.
(2) Prior to the publication by the Commission of the notice referred to in subsection (1), the Commission shall notify its intention to the affected party and give the party an opportunity to be heard as to why such notice should not be published and shall inform the party of its decision within 10 days ofthe hearing.
(3) The affected party referred to in subsection (2) may appeal against the decision ofthe Commission made under that subsection in accordance with procedures prescribed by Regulations.
(4) Where the supplier under subsection (1) undertakes to repair or replace goods, the supplier shall cause the goods to be repaired or replaced so that any defect in the goods specified in the notice under that subsection is remedied or the goods have been replaced and the cost of the repair or replacement, including any necessary transportation costs, shall be borne by the supplier.
Compliance 55. Where a notice under section 54(1) is in force in with Notice relation to a person, the person
(a) shall comply with the requirements and directions in the notice; and
(b) shall not, in trade or commerce
(i) where the notice specifies a defect in, or a dangerous characteristic of, the goods,
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supply goods of the kind to which the notice relates which have that defect or characteristic;
(ii) in any other case, supply goods of the kind to which the notice relates.
56. Where a person contravenes section 55 by
(a) supplying goods of a kind in relation to which a notice under section 54( 1) is in force; or
(b) failing to comply with the requirements of such a notice;
and another person suffers loss or damage by reason ofa defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods, the first mentioned person shall be liable to that other person who has suffered the loss or damage.
57.(1) Where the Commission or an officer authorised by the Commission for the purposes ofthis section, in this section referred to as an "authorised officer", has reason to believe that a person who, in trade or commerce, supplies consumer goods ofa kind which will or may cause injury to any other person, is capable of furnishing information, producing documents or evidence relating to goods ofthat kind, the Commission or the authorised officer may, by notice in writing served on that person, require the person
(a) to furnish to the Commission or to an authorised officer, within such reasonable time as is specified in the notice, any such information;
(b) to produce to the Commission or to an authorised officer, in accordance with such reasonable requirements as are specified in the notice, any such documents; or
Liability for loss or damage due to non compliance
Powers of Commission
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(c) in person or by the person's representative to appear before the Commision or an authorised officer at such reasonable time and place as are specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.
(2) Where an authorised officer has reason to believe that consumer goods will or may cause injury to a person, the authorised officer may, for the purposes of ascertaining whether goods of that kind will or may cause injury to any person, enter any premises in or from which the authorised officer has reason to believe that a person supplies goods of that kind in trade or commerce, and
(a) inspect goods ofthat kind;
(b) take samples ofgoods ofthat kind;
(c) inspect any documents relating to goods of that kind and make copies of, or take extracts from, those documents; or
(d) inspect equipment used in the manufacturing, processing or storage ofgoods ofthat kind.
(3) The powers of an authorised officer under subsection (2) shall not be exercised except
(a) pursuant to an authorisation given by the Commission under subsection (4); or
(b) in circumstances where the exercise of those powers is required without delay in order to protect life or ensure public safety.
(4) The Commission may authorise an authorised officer with such assistance as the officer thinks necessary to enter the premises specified in the authorisation and to exercise
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the powers specified in subsection (2) in relation to those premises.
(5) A person who
(a) refuses or fails to comply with a notice under this section to the extent the person is capable ofcomplying with it;
(b) in purported compliance with such a notice furnishes information or gives evidence that, to the person's knowledge, is false or misleading in a material particular; or
(c) who refuses or fails to provide an authorised officer acting under subsection (2) with all reasonable facilities and assistance for the exercise of the authorised officer's powers under that subsection,
commits an offencepunishable on conviction under section 70.
(6) . Any information furnished or evidence given, any document produced by a person under this section, and any information, evidence or document obtained under this section, shall not be admissible in evidence against that person
(a) in any proceedings instituted by that person; or
(b) in any other proceedings, except proceedings against that person for a contravention of a provision ofthis section.
58.(1) Where a person voluntarily takes action to recall Voluntary recall to begoods because the goods will or may cause injury to any notified
person, that person shall, within 2 days after taking that action, give notice in writing to the Commission
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(a) stating that the goods are subject to recall; and
(b) setting out the nature of the defect in, or dangerous characteristic of, the goods.
(2) The Commission may by notice in writing served on the person who or which has served it a notice under subsection (1) require that person to disclose to the public, or to a class of persons specified in the notice, in the manner and within the period specified in the notice
(a) the goods that are subject to recall; and
(b) the nature of the defect in, or dangerous characteristic of, the goods specified in the notice; and
(c) the circumstances in which the use of the goods is dangerous,
and where a person fails to comply with a notice served on it by the Commission under this subsection, the Commission may make the disclosure referred to in this subsection.
(3) A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to be sentenced under section 70.
Liability of 59. The liability of an insurer under a contract of insurerin insurance with a person, being a contract relating tocertaincases
(a) the recall ofgoods supplied or proposed to be supplied by that person; or
(b) that person's liability with respect to possible defects in goods supplied or proposed to be supplied by that person,
shall not be affected by reason only that that person gives to the
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Commission or to a public officer information relating to any goods supplied or proposed to be supplied by thatperson.
PART VII - INDUSTRY CODES
60. In this Part
"applicable industry code", in relation to a person who is a participant in an industry, means
(a) the provisions ofany mandatory industry code relating to the industry; or
(b) the provisions of any voluntary industry code relating to the industry that bind that person;
"consumer", in relation to an industry, means a consumer of goods or services supplied by participants in that industry;
"industry" includes franchising, and franchisors and franchisees are participants in the industry of franchising, whether or not they are also participants in another industry;
"industry code" means a code regulating the conduct ofparticipants in an industry towards other participants in the industry or towards consumers in the industry;
"mandatory" and "voluntary", in relation to an industry code or specified provisions of such a code, means respectively a code or specified provisions of a code that is or are declared by regulations rnade under section 62 to be mandatory or voluntary, as the case may be, in relation to that industry;
"participant" means a person participating in, or
Interpretation of this Part
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conducting business within an industry as a supplier; and
Contravention 61. A participant in an industry shall not, in trade or of industry commerce, contravene an applicable industry code.codes
Industry codes 62. The Minister may, by regulations
(a) prescribe an industry code, on the recommendation of the Commission, In accordance with section 63;
(b) withdraw all or part of an industry code prescribed under paragraph (a) in accordance with section 63;
(c) declare an industry code, or specified provisions of an industry code, to be mandatory or voluntary;
(d) for a voluntary industry code, or specified provisions of a voluntary industry code, specify
(i) the method by which a person is bound by the code or those provisions; and
(ii) the method by which a person ceases to be so bound, whether by reference to provisions ofthe code or otherwise;
(e) make such provision as the Commission recommends fit for the registering ofpersons bound or otherwise affected by an industry code.
Procedure for 63.(1) For the purposes ofsection 62(a), the Commission, recommending acting on its own initiative, or in response to a proposal fromindustry codes
persons conducting business within a particular industry, may recommend an industry code to the Minister after
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(a) publishing the proposed industry code for public comment;
(b) considering any submissions made during the public commentperiod;
(c) consulting with
(i) persons conducting business within the relevant industry;
(ii) relevant accredited consumer protection groups;
(d) making any revisions to the proposed industry code as published for comment.
(2) An industry code recommended under subsection (1) may include any existing scheme that has been voluntarily established within an industry by the participants of that industry to regulate the conduct of participants within that industry.
64. An industry code shall be consistent with the Industry codes to be consistentpurposes and policies ofthis Act and the Commission with purposes and policies of thisAct(a) shall monitor the effectiveness ofany industry
code relative to such purposes and policies; and
(b) shall at intervals of at least 5 years review the effectiveness of any industry code relative to such purposes and policies; and
(c) may, after conducting a review under paragraph (b), and taking the steps required under section 63(1), make further recommendations to the Minister including a recommendation to amend or withdraw all or
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part of an industry code prescribed under section 62(a).
Power of 65. The Commission may reasonably require persons Commission conducting business within the relevant industry to provide theto require information informationnecessary for the purposes of
(a) monitoring under section 64(a);
(b) a review under section 64(b).
Banding 66. For the purposes ofthis Part- force of industry codes (a) a mandatory industry code, or provisions of
such a code, binds or bind any and all participants within that industry;
(b) a voluntary industry code, or provisions of such a code, binds or bind a person who has agreed, as prescribed, to be bound by the code or those provisions and who has not subsequently ceased, as prescribed, to be bound by it or them.
PART VIII - PENALTIES AND REMEDIES
Penalties for 67.(1) Where the Commission determines after a formal breach of hearing that a person has contravened any requirement orprovisions of this Act prohibition contained in sections the Commission may order
the person
(a) in the case ofan individual, to pay a penalty of a sum not exceeding SRI 00,000; or
(b) in the case ofa person other than an individual, to pay a penalty of a sum not exceeding SR400,000.
(2) Where a body corporate is found to be in breach of
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this Act, any director or officer of the body corporate who knowingly authorised, permitted or acquiesced in the act or omission that constituted the breach shall also be liable to a penalty ofa sum not exceeding SRI 00,000.
(3) In determining an appropriate penalty for the purposes of this section, the Commission shall have regard to the following
(a) the nature, duration, gravity and extent of the contravention;
(b) any loss or damage suffered as a result of the contravention;
(c) the behavior ofthe respondent;
(d) the market circumstances In which the contravention took place;
(e) the level of profit derived from the contravention;
(f) the degree to which the respondent co operated with the Commission; and
(g) whether the respondent has previously been .found in contravention ofthis Act.
(4) Penalties collected by the Commission shall be paid into the Consolidated Fund.
68.(1) In addition to a penalty imposed under section 67, Directions the Commission
(a) shall where applicable, direct the person to cease the conduct constituting the contravention within a specified period;
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Offences by body corporate
Enforcement of direction, order or undertaking
Enforcement functions of Commission
(b) may require the person to take such further action as in its opinion, is necessary.
(2) A direction given under subsection (1) shall be in writing.
69.(1) Where in a proceeding under this Act, in respect of any conduct engaged in by a body corporate, it is necessary to establish the intention of the body corporate, it is 'sufficient to show that a director of the body corporate by whom the conductwas engaged in had that intention.
(2) Any conduct engaged in on behalf of a body corporate by a director of the body corporate or by any other person, at the direction or with the consent or agreement, whether express or implied, of a director of the body corporate shall be deemed, for the purposes ofthis Act, to have engaged in the conductthe body corporate.
70. A person who fails or refuses to comply with a an order, direction or undertaking of the Commission or order or direction of the Tribunal, commits an offence and is liable on conviction
(a) where the person is an individual, to a fine not exceeding 100,000 rupees or to imprisonment for a term not exceeding 2 years, or to both such fine and imprisonment;
(b) where the person is a person other than an individual to a fine not exceeding 400,000 rupees.
PARTIX-ENFORCEMENT
71. The Commission is responsible for enforcing this Act in accordance with this Part.
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72.(1) Subject to subsection (2), where the Commission Compliance noticehas reasonable grounds to believe that a person has engaged in
prohibited conduct, the Commission may issue a compliance notice in the prescribed form to thatperson.
(2) A compliance notice issued under subsection (l) shall set out
(a) the person to whom the notice applies;
(b) the provision of this Act that has been contravened;
(c) details and extent ofthe non-compliance;
(d) any action that is required to be taken and the period within which that action should be taken; and
(e) any penalty that may be imposed in terms of this Act ifthat action is not taken.
(3) A compliance notice issued under subsection (1) remains in force until
(a) it is set aside by the Tribunal or a Court upon a review of a decision of the Tribunal concerning the notice; or
(b) the Commission issues a compliance certificate in accordance with subsection (4).
(4) If the requirements of a compliance notice issued under subsection (1) have been satisfied, the Commission shall issue a compliance certificate.
(5) A person to whom a compliance notice has been issued, who fails to comply with the notice commits an offence and is liable on conviction to be sentenced under section 70.
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Objection to 73.(1) A person issued with a notice under section 72 may compliance apply to the Tribunal in the prescribed manner and form tonotice
review that notice within
(a) 15 business days ofreceiving that notice; or
(b) such longer period as may be allowed by the Tribunal on good cause shown.
(2) After considering any representations by the applicant and any other relevant information, the Tribunal may confirm, modify or cancel the whole orpart ofa notice.
(3) If the Tribunal confirms or modifies the whole or part of a notice, the applicant shall comply with that notice as confirmed or modified, within the time period specified in it.
Interim 74.(1) A person who has made a complaint to the measure Commission, may apply to the Commission for an interim
order in respect of that complaint and the Commission may grant such an order
(a) ifthere is evidence that the allegations may be true·,
(b) an interim order is reasonably necessary to prevent serious, irreparable damage to that person; and
(c) the respondent has been given a reasonable opportunity to be heard, having regard to the urgency ofthe proceedings.
(2) An interim order made under this section shall not extend after the earlierof
(a) theconclusionofahearingofacomplaint;or·
(b) the date that is 6 months after the date of issue ofthe interim order.
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(3) if an interim order has been granted, and a hearing into that matter has not been concluded within 6 months of the date of that order, the Commission may on good cause shown extend the interim order for a further period not exceeding 6 months.
75.(1) The Commission may accept a written undertaking Undertakings given by a person for the purposes ofthis section in connection with a matter relating to the Commission's functions under this Act.
(2) A person who gives an undertaking under subsection (1) may withdraw or vary the undertaking with the consent ofthe Commission.
(3) If on an application to withdraw or vary an undertaking, the Commission is satisfied that the person who gave the undertaking has breached a term of the undertaking, the Commission may make all or any ofthe following orders
(a) an order directing the person to comply with the terms ofthe undertaking;
(b) an order directing the person to pay to the Commission, a penalty ofan amount up to the amount of such financial benefit that the person has obtained as is reasonably attributable to the breach;
(c) an order that the Commission considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result ofthe breach;
(d) any other order that the Commission considers appropriate.
76.(1) Where, in any proceedings under this Act, the Other orders Commission finds that a person, whether or not that person is a
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party to the proceedings, has suffered, or is likely to suffer, loss or damage by the conduct of any other person that constitutes or would constitute
(a) a contravention;
(b) aiding, abetting, counselling, or procunng such a contravention;
(c) inducing by threats, promises or otherwise such contravention;
(d) being in any way directly or indirectly knowingly concerned in, or party to contravention by any other person; or
(e) conspiring with any other person to commit a contravention,
ofa provision ofthis Act, the Commission may whether or not it makes any order under this Part ofthis Act, make all or any of the orders referred to in subsection (2).
(2) For the purposes ofsubsection (1), the Commission may make the following orders
(a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct referred to in subsection (l), or of a collateral arrangement relating to such a contract, to be void and, if the Commission thinks fit, to have been void ab initio or at all times on and after such date before the date on which the order is made, as is specified in the order;
(b) an order varying such a contract or arrangement in such manner as is specified in
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the order and, if the Commission thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date or before the date on which the order is made, as is so specified;
(c) an order directing the person who engaged in the conduct referred to in subsection (1) to refund money or return property to the person who suffered the loss or damage;
(d) an order directing the person who engaged in the conduct referred to in subsection (1) to pay to the person who suffered the loss or damage the amount ofthe loss or damage;
(e) an order directing the person who engaged in the conduct referred to in subsection (1), at that person's own expense, to repair, or provide parts for, goods supplied by the person who engaged in the conduct to the person who
. suffered, or is likely to suffer, the loss or damage;
(f) an order directing the person who engaged in the conduct referred to in subsection (1), at that person's own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage.
(3) An application for an order under subsection (1) may be made at any time within 5 years from the time when the matter giving rise to the application occurred.
(4) An order made under subsection (2)(a) or (b) shall not prevent proceedings being instituted or commenced under this Act.
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PART X - MISCELLANEOUS
Appeals 77.(1) A party dissatisfied with an order or direction ofthe Commission may appeal to the Tribunal against or with respect to the order or direction.
(2) An appeal under subsection (1) shall be prosecuted in the form and manner provided by the Tribunal.
(3) A person dissatisfied with an order ordirection of the Tribunal may appeal to the Supreme Court against, or with respect to, the order or direction.
(4) Part VIII of the Fair Trading Commission Act, 2009, applies to an appeal to the Supreme Court.
Relationship 78.(1) The Commission may with regulatory and other authorities (a) liaise with any regulatory authority on matters
of common interest, and without limiting the generality of this power, may require necessary information from, exchange information with, and receive information from any such authority relating to
(i) matters ofcommon interest;or
(ii) a specific complaint or investigation;
(b) negotiate and enter into agreements with any regulatory authority which exercises jurisdiction over consumer matters within a particular industry or sector, so as to
(i) co-ordinate and harmonise the exercise ofjurisdiction over such matters within that industry or sector; and
(ii) to ensure the consistent application of this Act.
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(2) The Commission may liaise with any foreign or international authority having similar functions and powers as those ofthe Commission.
79. The Commission is responsible for promoting Promotion of awareness inawareness ofconsumerprotection matters by- consumer matters
(a) implementing education and information measures to develop public awareness of the provisions ofthis Act; and
(b) providing guidance to the public by issuing explanatory notices outlining its procedures.
80. The Minister may, in consultation with the Regulations Commission, make regulations under this section
(a) generally for carrying the provisions of this Act into effect;
(b) prescribing anything which by this Act is permitted or required to be prescribed; and
(c) imposing penalties for breach of the regulations made under the Act.
81. The Consumer ProtectionAct, 1977 is repealed.
SCHEDULE (Section 15(4))
CONTRACTTERMSDEEMEDUNFMRIFNOT INDIVIDUALLY NEGOTIATED
1. Any contract term which has the object or effect of
(a) excluding or limiting the legal liability ofa supplier resulting from an act or omission ofthat supplier, in respect ofthe quality ofproduct or service;
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(b) inappropriately excluding or limiting the legal rights of the consumer vis-a-vis the supplier or another party in the event oftotal or partial non-performance or inadequate performance by the supplier of any of the contractual obligations of the supplier, including the option of off-setting a debt owed to the supplier against any claim which the consumer may have against the supplier; or
(c) making an agreement binding on the consumer whereas provision ofservices by the supplier is subject to a condition the realization of which depends on the supplier's will alone; or
(d)· permitting the supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the supplier where the latter is the party cancelling the contract; or
(e) requiring the consumer to pay a disproportionately high sum in compensation ifthe consumer fails to fulfil his or her obligation; or
(f) authorising the supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the supplier to retain the sums paid for services not yet supplied by the supplier where it is the supplier who dissolves the contract; or
(g) enabling the supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds fordoing so; or
(h) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express his or her desire not to extend the contract is unreasonably early; or
(i) irrevocably binding the consumer to terms with which the consumer had no real opportunity of becoming acquainted before the conclusion ofthe contract; or
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G) enabling the supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract; or
(k) enabling the supplier to alter unilaterally without a valid reason any characteristics ofthe product or service to be provided; or
(1) providing for the price of goods to be determined at the time of delivery or allowing a supplier to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded; or
(m) giving the supplier the right to determine whether the goods or services supplied by the supplier are in conformity with the contract, or giving the supplier the exclusive right to interpret any term ofthe contract; or
(n) limiting the supplier's obligation to respect commitments undertaken by the supplier's agents, or making the supplier's commitments subject to compliance with a particular formality; or
(0) obliging the consumer to fulfil all his or her obligations where the supplier does not perform his or her obligations; or
(P) giving the supplier the possibility of transferring the supplier's rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter's agreement; or
(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to the consumer or imposing on the consumer a burden of proof which, according to the applicable law, should lie with another party to the contract.
2. Paragraph 1(g) does not apply to a term by which a supplier of financial services reserves the right to terminate unilaterally a contract of indeterminate duration without notice where there is a valid reason,
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provided that the supplier is required to inform the other contracting party or parties immediately.
3. Paragraph 1U) does not apply to a term under which a supplier of financial services reserves the right to alter the rate ofinterest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties at the earliest opportunity and that the latter are free to dissolve the contract immediately.
4. Paragraph 1U) does not apply to a term under which a supplier reserves the right to alter unilaterally the conditions ofa contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract.
5. Sub-paragraphs (g), U) and (1) ofparagraph 1do not apply to
(a) transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the supplier does not control; or
(b) contracts for the purchase or sale of foreign currency, traveller's cheques or international money orders denominated in foreign currency.
6. Paragraph 1(1) does not apply to price indexation clauses, where lawful, provided that the method by which prices vary is explicitly described.
I certify that this is a correct copy of the Bill which was passed by the NationalAssembly on 2nd November, 2010.
Azarel Ernesta Acting Deputy Clerk