The Regulations to the Consumer Protection Act 68 2008 dated 31 March 2011 lists contract terms that are considered to be unfair.
A term of a consumer agreement between a supplier operating on a for-profit basis and acting wholly or mainly for purposes related to his or her business or profession and an individual consumer or individual consumers who entered into it for purposes wholly or mainly unrelated to his or her business or profession is presumed to be unfair if it-
- excluding or limiting the liability of the supplier for death or personal injury caused to the consumer through an act or omission of that supplier subject to section 61 (1) of the Act.
- excluding or restricting the legal rights or remedies of the consumer against the supplier or another party in the event of total or partial breach by the supplier of any of the obligations provided for in the agreement, including the right of the consumer to set off a debt owed to the supplier against any claim which the consumer may have against the supplier;
- limiting the supplier’s obligation to respect commitments undertaken by his or her agents or making his or her commitments subject to compliance with a particular condition which depends exclusively on the supplier;
- limiting, or having the effect of limiting, the supplier’s vicarious liability for its agents;
- forcing the consumer to indemnify the supplier against liability incurred by it to third parties;
- excluding or restricting the consumer’s right to rely on the statutory defence of prescription;
- allowing the supplier to increase the price agreed with the consumer when the agreement was concluded without giving the consumer the right to terminate the agreement;
- enabling the supplier to unilaterally alter the terms of the agreement including the characteristics of the product or service;
- giving the supplier the right to determine whether the goods or services supplied are in conformity with the agreement or giving the supplier the exclusive right to interpret any term of the agreement;
- allowing the supplier to terminate the agreement at will where the same right is not granted to the consumer;
- enabling the supplier to terminate an open-ended agreement without reasonable notice except where the consumer has committed a material breach of contract;
- obliging the consumer to fulfil all his or her obligations where the supplier has failed to fulfil all his or her obligations;
- permitting the supplier, but not the consumer, to avoid or limit performance of the agreement;
- permitting the supplier, but not the consumer, to renew or not renew the agreement;
- allowing the supplier an unreasonably long time to perform;
- allowing the supplier to retain a payment by the consumer where the latter fails to conclude or perform the agreement, without giving the consumer the right to be compensated in the same amount if the supplier fails to conclude or perform the agreement (without depriving the consumer of the right to claim damages as an alternative);
- excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, including by requiring the consumer to take disputes exclusively to arbitration not covered by the Act or other legislation;
- restricting the evidence available to the consumer or imposing on him or her a burden of proof which, according to the applicable law, should lie with the supplier;
- entitling the supplier to claim legal or other costs on a higher scale than usual, where there is not also a term entitling the consumer to claim such costs on the same scale;
This list is not exhaustive and is indicative only. A term listed therein may be fair in view of the particular circumstances of the case.
