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Unconscionable Conduct

Unconscionable Conduct
Fijian Competition and Consumer Commission
June 11
14:33 2018

What is Unconscionable Conduct

Unconscionable conduct is a statement or action so unreasonable that it defies good conscience.

Section 76 of the Fijian Competition and Consumer Commission Act 2010 (FCCC Act 2010) prohibits unconscionable behavior in connection with the supply of goods or services, or the acquisition of goods or services.

Few examples of unconscionable conduct, depending on the circumstances, include:

  • Not properly explaining the conditions of a contract to a person they know doesn’t speak English or has a learning disability; or
  • Not allowing sufficient time to read an agreement, ask questions or get advice using a friend or relative of the customer to influence the customer’s decision; or
  • Encouraging a person to sign a blank or one-sided contract.
  • There is a list of factors which courts may take into account (but are not limited to) contained in section 76 of the FCCC Act 2010.

What Unconscionable Conduct Means

Unconscionable conduct generally refers to situations where one party to a transaction has a special disadvantage, and the other party is likely to know of this disadvantage.

Where the stronger party takes unfair advantage of this inequality, they have engaged in unconscionable conduct.

This traditional, equitable doctrine of unconscionable conduct requires evidence to establish.

The conducts may be unconscionable if it is particularly harsh or oppressive against the consumer.

The conducts which are simply unfair are considered unconscionable.

The FCCC deems transactions and dealings as unconscionable when they are deliberate, involving serious misconduct.

The intentions of such misconducts by the business is to mislead or deceive the consumer through unfair and unreasonable tactic.

How to Avoid Unconscionable Conduct

Unconscionable conduct cases depend on number of factors.

These include, among other things, the bargaining power of the business and the consumer; whether the conditions were reasonably necessary to protect the legitimate interests of the business; whether the consumer was able to understand the documents; whether any undue influence or pressure was exerted on the consumer; and the extent to which the business and the consumer acted in good faith.

By ensuring the following, both the consumers and businesses can avoid becoming the victim of unconscionable conduct:

  • have all commercial agreements in writing between business and consumer;
  • ensure consumers fully understand all the terms and conditions of a transaction;
  • make sure that parties do not sign any agreements without reading them carefully; and
  • refrain from talking consumers into a deal that is wrong through high pressure sales tactics and so forth.
  • The circumstances of unconscionable conduct may involve or is likely to involve:
  •  the exploitation of a party in a vulnerable situation;
  •  the exploitation of a party in a captive situation;
  •  lack of good faith by a party; and/or
  •  substantial imbalance in bargaining power.

To prove unconscionability case, the weaker party in a transaction must be able to establish that it was in a position of special disadvantage that the stronger party knew about (or should have known about) and that the stronger party took unfair advantage of the position.

Case study:

A telecommunication provider was found to have engaged in unconscionable conduct in relation to its sales methods used to induce consumers to enter into contracts, the terms of the contracts and the telecommunication provider’s enforcement of the contractual terms.

The telecommunication provider relied upon and enforced a ‘day cap’ clause in its contract, which in some cases only allowed a consumer to make an approximately ten-minute call per day before being charged fees in excess of the monthly contract charge.

The structure of the contract meant that consumer was very likely to incur high excess usage charges as the operation of this term was not adequately disclosed to the consumer prior to signing of the contract.

Advise to the Businesses

Under the FCCC Act 2010, businesses must not engage in unconscionable conduct, when dealing with consumers.

The business must take necessary measures while dealing with consumers and if the business is not certain about the conduct, they may contact FCCC to seek assistance.

Alternatively, consumers who come across such conducts should report the matter to FCCC  immediately.

For more information/details on Fijian Competition and Consumer Commission and FCCC Act 2010, visit our website on http://www.fccc.gov.fj

Feedback:  maraia.vula@fijisun.com.fj

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