“PARK
AT YOUR OWN RISK”
“GOODS SOLD ARE NOT RETURNABLE”
“GOODS SOLD ARE NOT
EXCHANGABLE”
“GOODS SOLD ARE NOT REFUNDABLE”
UP THERE, are some lines of disclaimers that
we often read after we entered a parking area, after we bought a t-shirt, after
we made a transaction and after a lot of things that we did every day. We faced
all these at the shopping complex, parking areas, restaurants and even at the
retail shops.
We as consumers often overlooked about
this. Many did not know that actually, there is a clause in Contract Law in
Malaysia stated that there are three rules for such exemption of disclaimers to
be valid. Most parties may seek to exclude or disclaim his liabilities under
the law, thereby depriving the other party from exercising their rights.
Under this Exemption Clause as well known as
Exclusion Clause of Contract Law, one must abide to three rules for this clause
to be valid. First condition, one must give notice of the exclusion clause at
or before the time of concluding the contract. This means that, you must be
well-informed about the disclaimer before or at the transaction or better known
as the contract being concluded. One simple example will be, if you are at the
mall, shopping some stuff, and you entered a premise that did not put any disclaimer
outside or anywhere at the shop telling you about the exclusion clause. After
that, you purchased a pair of shoes. After buying that, you received a receipt
stating that “GOODS SOLD ARE NOT EXCHANGABLE”. Only after
that you realized that the shoes are defected. You asked the staff at the shop
to change it for you but the stuff refused to do so as he mentioned that they
already stated it in the receipt. The fact is,, you can actually brought this
matter up to Small Claims Tribunal Court. The reason is that the exemption
clause was not brought to attention before or at the transaction. You were only
informed after you received the receipt. In such case, the contract is
considered VOID.
Disclaimers printed on receipts often confusing -.-'
CONSUMERISM; a never ending issue
Second condition for the clause to be
valid is the terms must be contained or referred to in a document which was
intended to have contractual effect. This refers to any printed documents. It
may vary from signboards or fliers given before or at the transaction. Let’s take
parking provider for instance. They seldom place any signboards or any notice
board outside their parking area. They usually have it printed on the parking
tickets. But, it is never fair for the consumers as they only know about the
waive of liabilities on the provider after they entered and received the
parking tickets at the auto machine. If and only of that ever happen, one can
actually claim on the damage that happened at the premise. The parking provider
has the obligation to put it into printed and noticeable documents and must be
known by the consumer before the contact is concluded.
Last but not least, the condition for
the exemption clause to be valid is reasonable steps must be taken to bring the
terms to the attention of the other party. Yes, this mostly refers to
signboards and the way it is brought to the attention of the customers. Or, the
other way will be to inform to customers orally. Meaning, the customers can be
reminded that no exchangeable or refundable etc. The tricky part about doing it
verbally is that if the providers said things differently from the one in the
printed documents, the verbal words will be the new disclaimers instead of the
printed one. Thus, the providers must really try their best to inform to the
customers about the disclaimers for the contract to be valid.
If and only if all three conditions
are abide, only then all the liabilities on the provider can be exempted or
excluded. Mostly, Malaysian are not well aware of this clause because there are
mainly are not well informed about their rights as consumers. There was a
seminar on Legal Issues on E-Commerce by A/P Catherine Tay, she mentioned that
“As long as your goods are purchased for personal or home use and not for
business, all exclusion disclaimers are VOID”. She said that because she felt
that even the educated people are cowed by such unfair wordings because they
were never informed about it. Most merchants chose to keep it low for their
interest but it should change now.
The
most basic thing is that most of the time, the customers are being manipulated
due to their ignorance. Yes, the merchants or providers will never actually
reveal their clients right as a way to wash hands off their liabilities. It is
an unhealthy conducts and it should change now. The consumers and customers are
the determinants on the successfulness of a service or products. But often
consumers are deceived. Issues on consumerisms happen every single day. So,
consumer must know their rights and stand up for their rights. Any case of
consumerisms can be directed and reported to Small Claims Tribunal Court :
For
any issues related to the Tribunal for Consumer Claims, you can contact:
Tribunal Tuntutan Pengguna Malaysia,
Kementerian Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan,
Aras 5, Podium 2,
No. 13, Persiaran Perdana,Presint 2,
Pusat Pentadbiran Kerajaan Persekutuan,
62623 Putrajaya.
Toll
Free : 1-800-88-9811
Telephone
No. : 03-8882 5822
Fax No. : 03-8882 5831
