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Unconscionable Conduct

What is unconscionable conduct? Unconscionable conduct refers to something that is almost unimaginably unacceptable. Think of it as being something that no reasonable person would even think of doing or
01 Aug 2016 12:01
Unconscionable Conduct
Conduct

What is unconscionable conduct?

Unconscionable conduct refers to something that is almost unimaginably unacceptable. Think of it as being something that no reasonable person would even think of doing or saying — something unbelievable, outrageous, and often horrible. Other words that is synonymous are: excessive, unwarranted, uncalled for, unreasonable, unfair, inordinate,disproportionate, immoderate, extreme, undue, outrageous,preposterous, monstrous, inexcusable, unnecessary, needless –etc.  In trade and commerce such conducts usually refers to those not guided by conscience; unscrupulous, not in accordance with what is just or reasonable.

How can a conduct be determined as unconscionable under CCD2010?

To determine whether a supplier has committed an unconscionable conduct under Commerce Commission Decree 2010 (CCD2010) in connection with the supply or possible supply of goods or services, the following should be taken into account —

  • the difference in the bargaining positions of the supplier and the customer;
  • whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier;
  • whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services;
  • whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer (or person acting on behalf of the customer) by the supplier in relation to the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
  • the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier.

 

Understanding Unconscionable Conduct

To understand unconscionable conduct better, it is important to visualise the following trade set up –

 

  1. There is a difference in the bargaining positions of the supplier and the customer.

In villages, there are often one shop operating and if located in a remote area, their bargaining power is much higher than the villagers.

 

  1. As a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier;

In the case referred above, villagers have limited choices but to comply to whatever demand of trade the shop owner.

 

  1. Whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services;

In hire purchase trade, customers are often induced or required to sign contract documents they may not understand fully or correctly.

Given the speed of processing and the voluminous documents involved, it would be unreasonable to think that customers have the time and liberty as expected to peruse the contents, understand that is written, seek independent advice, before making the choice of signing. But the signed contract is often used against them when breaches or defaults occur.

 

  1. Whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer (or person acting on behalf of the customer) by the supplier in relation to the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services.

In some tenancies, landlords often resort to the use of unfair tactics such as utility disconnections, lock-outs, verbal abuse, baseless criminal accusations and others as a means to force tenants to vacate a property being rented.

This is done so without following the legal process of notices and subsequent court actions to enforce eviction.

For the sale of goods commonly offered on promotions, verbal references such as “buy now because price will increase tomorrow” are often uttered to influence customers to act.

 

  1. The amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier.

A towing business charges $4,000 to tow a vehicle involved in an accident from a remote location to a garage for repairs. The same exercise has been quoted in the range of $2,500 by two other towing service providers.

It could be said that the principal towing business has engaged in unconscionable conduct against the vehicle owner.

 

Conditions that nullifies unconscionable nature of a conduct under CCD2010

Under CCD2010, the following conditions nullifies a conduct from being considered unconscionable are as follows-

 

(a) That the circumstances now considered unconscionable were not reasonably foreseeable at the time of the alleged contravention; and

(b) That the circumstances existed before the commencement of the CCD2010.

 

A trader cannot be taken to engage in unconscionable conduct under CCD2010 only when found pursuing civil claims against a customer.

Next Week: Unconscionable Conduct

 

For more information/details on Fiji Commerce Commission and Commerce Commission Decree 2010, visit their website on http://www.commcomm.gov.fj or join their Facebook page at https://www.facebook.com/commcomm.gov.fj

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