The Fijian Competition and Consumer Commission (FCCC) continually raises awareness amongst traders and service providers on the impor­tance of doing business the right way and their requirements under the FCCC Act 2010.

These are done to ensure a fair and just marketplace for all Fiji­ans.

However, the FCCC still continues to come across a handful of traders who tend to contravene the FCCC Act 2010.

Traders and service providers who engage in unfair practices to entice vulnerable consumers.

In today’s article we take a look at the issue of ‘Unconscionable Con­duct’.

What is Unconscionable Conduct

Unconscionable conduct is a state­ment or action which is extremely unfair and overwhelmingly one-sided.

It 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.

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

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

The intentions of such miscon­ducts by a business may likely be to mislead or deceive the consumer through unfair and unreasonable tactic.

Section 76 of the FCCC Act 2010 prohibits unconscionable behavior in connection with the supply of goods or services, or the acquisi­tion of goods or services.

How to Avoid Unconscionable Conduct

Unconscionable conduct cases de­pend on a number of factors.

These include, but are not limited to, 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.

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.

Advise to the Businesses

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

Traders and service providers must take necessary measures in order to ensure they are carrying out their businesses within the am­bit of the law.

Further, in dealing with consum­ers, if a business is uncertain about their conduct, they may con­tact FCCC to seek assistance.

Alternatively, consumers who come across such conducts are en­couraged to 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