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Bahamas Numbered Acts |
No. 7 of 2006 |
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AN ACT TO MAKE PROVISION FOR |
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THE GREATER PROTECTION OF CONSUMERS, TO |
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ESTABLISH A CONSUMER PROTECTION COMMISSION |
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AM) FOR THE FUNCTIONS AND POWERS OF THAT |
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COMMISSION AND RELATED MATTERS |
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[Date of Assent - 26th May, 2006] |
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Enacted by the Parliament of The Bahamas. |
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1.
This Act may be cited as the
Consumer Protection Act, 2006 and shall come into operation on such
date as the Minister may by-notice
in the Gazette appoint.
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Short Title and commencement. |
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2.(1)
In this Act‑
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Interpretation and application of Act. |
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"Consumer" in relation to - |
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(a)
any goods, means -
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(i)
a natural person who acquires
or enters a contract to acquire goods for his own private use or
consumption; and
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(ii)
a commercial undertaking that
purchases consumer goods;
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(b)
any services or facilities,
means any person who employs or wishes to be provided with the
services or facilities (otherwise than
for the purposes of any
business of his) ; or
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(c)
any accommodation, means any
person who wishes to occupy the accommodation (otherwise than for
the purposes of any business of his)
;
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"Consumer Commission" means the Consumer Protection Commission established by section 3; |
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"consumer protection policy" means the aims of the Minister for consumer protection as published by the Minister from time to time which may include the enhanced rights and remedies available to the consumer; |
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"goods" has the meaning ascribed thereto in the Sale of Goods Act; |
Ch. 337. |
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"Minister" means the Minister responsible for Consumer Affairs; |
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"provider" in relation to - |
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(i)
any goods, means any person who
sells goods; or
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(ii)
any services or facilities,
means any person who provides services or facilities.
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(2)
Subject to subsection (1),
this Act shall apply to all persons involved in trade or business
whether through the purchasing or vending
of goods or
services.
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(3)
The Minister may by order,
subject to affirmative resolution, exempt categories of trade or
business from the application of this
Act.
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3.(1)
There is established for the
purposes of this Act a body to be called the Consumer
Commission.
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Establishment of Consumer Commission. |
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(2)
The First Schedule has effect
as to the constitution of the Consumer Commission and otherwise in
relation thereto.
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First Schedule. |
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4.(1)
The functions of the Consumer
Commission shall be to -
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Functions and powers of the Consumer Commission. |
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(a)
advise the Minister generally in
relation to consumer issues;
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(b)
formulate and implement standards
in relation to the consumer protection policy;
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(c)
carry out, at the request of a
consumer who has been adversely affected, such investigations in
relation to the sale of goods or the
provision of services as will
enable it to determine whether the goods were sold or the services
were provided in contravention of
this Act and thereafter to make
such report and recommendations in connection therewith as it
thinks fit to the Minister;
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(d)
carry out, on its own initiative,
such other investigations in relation to the availability of goods
of any class or description as
it thinks fit and make such report
and recommendations as it thinks fit to the Minister;
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(e)
promote the development of
organizations formed for the protection of the consumer;
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(f)
collect, compile, analyze and
publish information in relation to any trade or business;
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(g)
provide information to consumers
on their rights as consumers and any other form of consumer
education;
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(h)
resolve disagreements between
consumers and providers; and
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(i)
carry out such other functions as
the Minister may assign to the Consumer Commission from time to
time.
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(2)
In carrying out its functions,
the Consumer Commission has the power to do all such acts as appear
to it to be requisite, advantageous
or convenient for or in
connection with carrying out its functions or to be incidental to
their proper discharge and may carry on
any activities in that
behalf either alone or in association with any other person or
body.
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5.
The Minister may, after
consultation with the Consumer Commission, give to the Consumer
Commission a written direction, as to government
policy that is to
be applied by the Consumer Commission in the exercise of its powers
and the performance of its duties, and the
Consumer Commission
shall give effect to that direction.
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Directions. |
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6.
The funds and resources of the
Consumer Commission shall consist of -
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Funds and resources of the Consumer Commission. |
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(a)
such moneys as may from time to
time be placed at its disposition for the purposes of this Act by
Parliament;
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(b)
all other moneys and other
property which may in any manner become payable to, or vested in
the Consumer Commission in respect of
any matter incidental to its
functions.
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7.(1)
A complaint may be made to the
Consumer Commission by a person who claims to have suffered a
disadvantage in relation to the acquisition
of goods or
services.
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Complaints. |
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(2)
Where the complainant -
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(a)
is a minor, the complaint may be
made by his parent or guardian;
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(b)
is unable to act for himself by
reason of infirmity or any other cause or has died, the complaint
may be made by a member of his family
or his personal
representative.
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(3)
A complaint to the Consumer
Commission may be made orally or in writing.
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(4)
The Consumer Commission may,
upon the request of a complainant specified in subsection (2),
assist that complainant in the event that
litigation is
contemplated.
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(5)
Where litigation is
contemplated by the complainant in relation to a complaint that was
not in writing, the Consumer Commission shall
require the
complainant to produce a written version of the complaint signed by
the complainant.
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8.(1)
The Consumer Commission may
determine whether to undertake or continue an investigation under
this Act and in particular, but without
prejudice to the generality
of the foregoing, may refuse to undertake or continue any
investigation if it is of the opinion that
-
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Discretion not to conduct investigation. |
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(a)
the complaint is frivolous or
vexatious or not made in good faith;
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(b)
the complainant is guilty of
unreasonable delay in the making of his complaint;
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(c)
the complainant does not have a
sufficient interest in the subject-matter of the complaint;
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(d)
the subject-matter of the
complaint should more appropriately be dealt with by another body;
or
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(e)
having regard to all the
circumstances of the case, no investigation or further
investigation is necessary.
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(2)
Where the Consumer Commission
decides not to undertake or continue the investigation of a
complaint, it shall, in writing, inform
the complainant of that
decision and give reasons therefor.
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9.(1)
The Consumer Commission shall
not be precluded from conducting an investigation in respect of any
matter by reason only that it is
open to the complainant to apply
to the court for redress under Article 28 of the
Constitution.
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Power to investigate not precluded. Constitution. |
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(2)
If any question arises as to
whether the Consumer Commission has jurisdiction to investigate any
case or class of case under this
Act, the Consumer Commission may
apply to the court for a declaration determining that
question.
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(3)
The fact that an action is
commenced in any court in connection with a matter under
investigation by the Consumer Commission shall
not, unless the
court otherwise directs, preclude such investigation.
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10.(1)
The Consumer Commission may
summon any person to attend before the Consumer Commission in
relation to an investigation being conducted
by it and to give
evidence or to produce any document in his possession or under the
control of such person.
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Summoning persons to give evidence. |
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(2)
A summons under this section
-
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(a)
shall be in the form prescribed
in the Second Schedule; and
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Second Schedule. |
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(b)
may be served by a constable, or
a bailiff.
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11.(1)
All persons summoned to attend
and give evidence or to produce a document before the Consumer
Commission are -
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Obligations of persons summoned. |
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(a)
entitled, in respect of such
evidence or the disclosure of any communication or the production
of any such document, to the same right
or privilege as before a
court of law;
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(b)
entitled to be paid their
expenses, including traveling expenses, at the rates as are
determined for witnesses who are entitled to
have their expenses
paid from public funds.
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(2)
Any person who -
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(a)
without sufficient cause, fails
or refuses to attend before the Consumer Commission in obedience to
a summons under this Act, or fails
or refuses to produce any
document which he was required by such summons to produce;
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(b)
being a witness, leaves the
Consumer Commission without the permission of the Consumer
Commission;
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(c)
being a witness, refuses, without
sufficient cause, to answer any question put to him by or with the
permission of the Consumer Commission;
or
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(d)
wilfully obstructs or interrupts
the proceedings of the Consumer Commission;
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commits an offence and is liable on summary conviction to a fine not exceeding two thousand dollars. |
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12.
In all legal proceedings, any
paper, book, record or document produced to the Consumer Commission
pursuant to section 10 shall be
received as prima facie evidence of
the truth of the statements contained therein.
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Paper, book, record or document as evidence. |
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13.(1)
The Consumer Commission shall
keep proper accounts and shall prepare an annual statement of
accounts in a form satisfactory to the
Minister, being a form which
shall conform with established accounting principles.
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Accounts. |
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(2)
The accounts of the Consumer
Commission shall be audited annually by auditors appointed by the
Consumer Commission with the approval
of the Minister from among
members of The Bahamas Institute of Chartered Accountants.
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14.(1)
The Consumer Commission shall,
in each year -
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Annual reports and estimates. |
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(a)
on or before the 31st day of May,
submit to the Minister a report of its activities during the twelve
months ending on the 31st day
of March in that year, including a
statement of its accounts audited in accordance with section
13;
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(b)
on or before the 30th day of
April, submit to the Minister for his approval its estimates of
revenue and expenditure for the financial
year next
following.
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(2)
The Minister shall cause
copies of reports submitted pursuant to subsection (1)(a) together
with the annual statement of accounts
and auditor's report thereon
to be laid on the Table of the House of Assembly.
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15.(1)
Subject to subsection (3), the
Minister may, by Order -
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Minister to restrict imports, etc. |
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(a)
prohibit the importation or
exportation of goods of any class or description of goods from or
to any country;
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(b)
prohibit the importation or
exportation of goods or any class or description of goods from or
to any country except under the authority
of a licence granted by
the Minister;
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(c)
regulate the distribution,
purchase or sale of goods or any class or description of
goods;
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(d)
subject to section 16 provide for
the recall of certain goods which are dangerous or hazardous to
safety and the refund or remission
by the vendor of the purchase
price paid;
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(e)
provide for the furnishing by
persons carrying on or employed in connection with any trade or
business of information concerning all
or any of the elements of
the cost or of the sale price of goods or any class or description
of goods bought or sold whether by wholesale
or retail in such
trade or business;
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(f)
require the provision and
maintenance, at places at which goods are offered for sale by
retail, of means whereby persons wishing to
purchase any of those
goods may ascertain the weight or measurement thereof.
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(2)
Without prejudice to the
generality of subsection (1)(f), the Minister may by Order, require
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(a)
that the prices of those goods
shall be marked on the goods or on any container in or from which
they are sold; and
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(b)
that persons shall not be
obstructed in any attempt to ascertain at the place at which they
wish to purchase any of those goods, the
weight or measurement
thereof.
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(3)
Subsection (1) shall not
authorize the Minister to make an Order regulating the exportation
or importation of any goods which may
be regulated by the following
Acts -
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(a)
the Animal Contagious Diseases
Act;
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Ch. 246. |
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(b)
the Export Control Regulations
Act;
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Ch. 299. |
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(c)
the Fisheries Resources
(Jurisdiction and Conservation) Act;
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Ch. 244. |
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(d)
the Food Act;
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Ch. 236. |
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(e)
the Import Control
Regulations;
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Ch. 298. |
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(f)
the Plants Protection Act.
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Ch. 250. |
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16.(1)
Subject to sections 19 and 20
where,
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Compulsory recall of Goods. |
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(a)
a provider supplies goods on or
after the commencement of this Act; and
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(b)
it appears to the Minister that
the goods are goods of a kind which will or may cause injury to any
person and that the provider has
not taken satisfactory action to
prevent the goods causing injury to any person,
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the Minister may, by notice in writing published in the Gazette, require the provider to do one or more of the following - |
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(aa)
take action within the period
specified in the notice to recall the goods;
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(bb)
disclose to the public, or to a
class of persons specified in the notice, in the manner and within
the period specified in the notice,
one or more of the following
-
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(i)
the nature of a defect in, or a
dangerous characteristic of, the goods specified in the
notice;
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(ii)
the circumstances, being
circumstances specified in notice, in which the use of the goods is
dangerous; and
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(iii)
procedures for disposing of the
goods specified in the notice;
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(cc)
inform the public, or class of
persons specified in the notice, in the manner and within the
period specified in the notice, that
the provider undertakes to do
whichever of the following the provider thinks is appropriate
-
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(i)
except where the notice
specifies a dangerous characteristic of the goods, repair the
goods;
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(ii)
replace the goods;
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(iii)
refund to a person to whom the
goods were supplied, whether by the provider or by another person,
the price of the goods,
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within the period specified in the notice. |
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(2)
The Minister may by notice
published in the Gazette give directions as to the manner in which
the provider is to carry out a recall
of goods required under
subsection (1).
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(3)
Where the provider under
subsection (1) undertakes to repair goods, the provider shall cause
the goods to be repaired so that any
defect in the goods specified
in the notice under subsection (1) is remedied.
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(4)
Where the provider under
subsection (1) undertakes to replace goods, the provider shall
replace the goods with like goons which, if
a defect or a dangerous
characteristic of, the first-mentioned goods was specified in the
notice under subsection (1), do not have
that defect or
characteristic.
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(5)
Where the provider under
subsection (1) undertakes to repair goods or replace goods, the
cost of the repair or replacement, including
any necessary
transportation costs, shall be borne by the provider.
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(6)
Where goods are recalled,
whether voluntarily or in accordance with a requirement made by the
Minister under subsection (1), a person
who has supplied or
supplies any of the recalled goods to another person outside The
Bahamas shall, as soon as practicable after
the supply of those
goods, give notice in writing to that other person, addressed to
his last known address -
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(a)
stating that the goods are
subject to recall; and
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(b)
if the goods contain a defect or
have a dangerous characteristic, setting out the nature of that
defect or characteristic.
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(7)
Where a person is required
under subsection (6) to give notice in writing to another person,
the first-mentioned person shall, within
14 days after giving that
notice, provide the Minister with a copy of that notice.
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(8)
A person who contravenes
subsection (7) commits an offence and is liable on summary
conviction to a fine not exceeding two thousand
dollars.
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17.(1)
Where a notice under section
16(1) is in force in relation to a person, he -recall notice.
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Compliance with goods recall notice. |
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(a)
shall comply with the
requirements and directions in the notice; and
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(b)
shall not, where the notice
specifies a defect in, or a dangerous characteristic of, the goods,
supply goods of the kind to which
the notice relates which have
that defect or characteristic.
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(2)
A person who contravenes
subsection (1) commits an offence and is liable on summary
conviction to a fine not exceeding five thousand
dollars.
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18.
Where‑
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Loss or damage caused by contravention of goods |
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(a)
a person contravenes section 16
by -
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(i)
supplying goods of a kind in
relation to which a notice under section 160) is in force; or
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(ii)
failing to comply with the
requirements of such notice; and
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(b)
another person suffers loss or
damage by reason of a defect in or a dangerous characteristic of,
the goods or by reason of not having
particular information as to a
characteristic of the goods,
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that other person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods, or by the failure of the first-mentioned person to comply with the notice, as the case may be. |
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19.(1)
Subject to section 20, where
the Minister proposes to publish a notice under section 160) in
relation to goods of a particular kind,
the Minister shall prepare
-
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Consultation to be held in certain cases. |
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(a)
a draft of the notice that he
proposes to publish; and
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(b)
a summary of his reasons,
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and shall, by notice published in the Gazette, invite any person, in this section referred to as a "provider", who supplied or proposes to supply goods of that kind to notify the Minister, within the period, in this section referred to as the relevant period", of 10 days commencing on the day specified in the last-mentioned notice, being not earlier than the day on which that notice is published in the Gazette, whether the provider wishes the Minister to hold a consultation in relation to the proposed publication of the first-mentioned notice. |
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(2)
A notice published under
subsection (1) shall set out a copy of the draft notice under
section 16(1) and a copy of the summary of
the reasons for the
proposed publication of the notice.
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(3)
If no provider notifies the
Minister in writing within the relevant period, or within such
longer period as the Minister allows, that
the provider wishes the
Minister to hold consultations in relation to the proposed
publication of the notice under section 16(1),
the Minister shall
proceed to take such action under section 16 as he thinks
fit.
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(4)
If a provider notifies the
Minister in writing within the relevant period, or within such
longer period as the Minister allows, that
the provider wishes the
Minister to hold consultations in relation to the proposed
publication of the notice under section 160),
the Minister shall
appoint a day (being not later than 14 days after the end of that
period), time and place for the holding of the
consultation, and
give notice of the day, time and place so appointed to each
provider who so notified the Minister.
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(5)
At a consultation under this
section -
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(a)
the Minister or a person or
persons nominated in writing by the Minister is or are entitled to
be present;
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(b)
each provider who notified the
Minister in accordance with subsection (4) is entitled to be
present or to be represented;
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(c)
any other person whose presence
at the consultation is considered by the Minister to be appropriate
is entitled to be present or to
be represented; and
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(d)
the procedure to be followed
shall be as determined by the Minister.
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(6)
The Minister shall cause a
record of proceedings at a consultation under this section to be
kept.
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(7)
The Minister shall, as far as
is practicable, ensure that each person who, in accordance with
subsection (5), is entitled to be present
or who is representing
such a person is given a reasonable opportunity at the consultation
to present his case and, in particular,
to inspect any documents
which the Minister proposes to consider for the purpose of making a
decision after the conclusion of the
consultation, other than any
documents that contains particulars of a secret formula or process,
and to make submissions in relation
to those documents.
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(8)
As soon as is practicable
after the conclusion of a consultation in relation to the proposed
publication of a notice under section
16(1), the Minister shall
proceed to consider what action he should take under section
16.
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20.(1)
Where it appears to the
Minister that goods of a particular kind create an imminent risk of
death, serious illness or serious injury,
the Minister may,
immediately, by notice published in the Gazette, publish a notice
in relation to the goods under section 160).
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Exception in case of danger to public. |
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(2)
Where the Minister publishes a
notice in the Gazette under subsection (1) -
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(a)
in a case where the notice is
published before the Minister takes any action under section 160)
in relation to goods of a particular
kind, section 18 does not
apply in relation to the action that the Minister may take under
section 160) in relation to goods of that
kind; or
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(b)
in any other case, any action
taken by the Minister under section 16(1) in relation to goods of a
particular kind ceases to have effect
and, if a consultation had,
under section 18, been arranged or had commenced, the Minister may
publish the notice under section 16(1)
without regard to the action
taken under section 18.
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21.(1)
At any time before payment is
made for any item of goods of, or above a prescribed value (whether
sold as used or unused), a provider
shall provide, both orally and
in writing, all information in the English Language to the consumer
concerning the goods being sold
including, where applicable, the
origin, price in the currency of The Bahamas, care terms,
components, hazards, proper use, assembling,
installation, weight
and size of the goods and where chargeable, the professional fees
of the provider being charged in respect of
the goods.
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Information to consumer. |
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(2)
Where a provider fails to
comply with subsection (1) he shall, notwithstanding anything to
the contrary in the warranty document,
be responsible for any
damage done to the goods by the consumer that can be directly
attributed to the consumer's lack of information.
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22.(1)
A consumer shall at all times
be entitled to check the weight, volume or other measurement of the
goods sought to be purchased where
the weight, volume or other
measurement of the goods materially affects or determines the price
thereof.
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Measurement of goods. |
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(2)
For the purposes of subsection
(1), any provider of any good that is sold by reference to its
weight, volume or other measurement
shall provide appropriate
measurement standards in accordance with the Weights and Measures
Act for use by the consumer at the time
of purchase.
|
Ch. 338. |
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(3)
A provider commits an offence
if in selling or purporting to sell any goods by weight or other
measurement or by number, he knowingly
delivers or causes to be
delivered to the consumer, a lesser quantity than that purported to
be supplied or that corresponds with
the price charged.
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23.(1)
Where a consumer purchases
goods or services from a provider, the provider shall give to the
consumer a receipt showing -
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Receipt to be given to consumer. |
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(a)
the amount paid by the
consumer;
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(b)
the date on which the purchase is
made or the service is rendered;
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(c)
a description of the goods sold
or services rendered;
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(d)
the professional fees charged;
and
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(e)
such other information as the
Minister may by regulations prescribe.
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(2)
At any time subsequent to the
purchase, the receipt issued by the provider shall be adequate
proof of the purchase of the goods or
services and may be used for
the purposes of refund in any of the circumstances specified in
this Act.
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(3)
A provider who contravenes
subsection (1) commits an offence and is liable on summary
conviction to a fine not exceeding two thousand
dollars.
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24.(1)
A provider shall issue
explicit warranties in relation to his goods or services, as the
case may be, whether the goods are new or
used, and whether the
service offered is the repair of any appliance, furniture,
equipment or other goods.
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Warranties. |
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(2)
Any warranty given by the
manufacturer (whether local or foreign)and attached to any goods or
services sold or provided as the case
may be, in The Bahamas shall
be deemed to extend to the provider in The Bahamas who shall be
liable to the consumer in relation to
such warranty.
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(3)
Where a provider is liable
only for the free replacement of parts under a warranty agreement,
the provider shall not require the consumer
to use the services of
the provider in effecting the repairs to the equipment.
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(4)
Implied warranties in the
absence of explicit warranties shall apply to the sale of all used
goods and to the repair of all goods.
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(5)
In the absence of an explicit
warranty which shall be at the discretion of the provider, an
implied warranty of six months on parts
and labour shall, subject
to the standard conditions of warranties attach to the
transaction.
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25.(1)
Subsection (2) applies in any
case where a provider -
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Damage resulting from use service or goods. |
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(a)
undertakes to' provide a consumer
with a good or service upon payment of a fee thereof;
|
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(b)
provides the declared benefit
attached to the service or use of the good; and
|
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(c)
inadvertently causes bodily
injury or pecuniary loss to be sustained by the consumer,
independent of all other causes or contributory
negligence.
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(2)
The provider shall, upon
presentation of a substantiated claim by the consumer -
|
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(a)
undertake to pay the consumer all
reasonable costs incurred or to be incurred by the consumer in
correcting the damage so caused;
and
|
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(b)
initiate all such compensation
within a period not exceeding seven days after the complaint is
received at the registered, regional
or local offices of the
provider.
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(3)
A provider shall not be
relieved of liability if -
|
||
(a)
the consumer fails to avail
himself of some other good or service that may be recommended by
the provider of the primary good or service
as a supplementary good
or service; or
|
||
(b)
has provided complementary goods
or services which fail to function well or cause damage or other
loss.
|
||
(4)
A provider who contravenes
subsection (2) commits an offence and is liable on summary
conviction to a fine not exceeding two thousand
dollars.
|
||
26.(1)
A provider who sells a
consumer any good that, due to no apparent negligence or abuse by
the consumer within the comprehensive warranty
period, fails to
provide to the consumer the benefit and uninterrupted enjoyment for
which it was intended, shall be responsible
for its replacement or
repair at no cost to the consumer.
|
Damaged goods sold to consumer. |
|
(2)
The provider shall, in the
event of repair of the good referred to in subsection (1) -
|
||
(a)
return the good to the consumer
in a fully repaired and functional state within ten days of receipt
of the good for replacement or
repair; or
|
||
(b)
if the good is not returned to
the consumer within the period of ten days, provide the consumer
with a temporary substitute of comparative
value for the consumer's
uninterrupted use and enjoyment until such time as the consumer's
good is replaced or repaired and returned.
|
||
27.(1)
Subject to subsections (3) and
(4), where a consumer is encouraged to acquire goods by the
provider's declaration and description
of the goods and the
consumer subsequently discovers that those goods are defective in a
material particular from that intended to
be purchased, the
consumer may return the goods to the provider.
|
Return of defective goods. |
|
(2)
The provider shall immediately
offer to the consumer, in exchange for the returned goods, monetary
compensation of the goods or such
other amount as may be agreed
between the consumer and the provider.
|
||
(3)
Refunds on goods returned to a
provider pursuant to subsection (1) shall only be made where the
goods are returned to the provider
in the condition purchased or
with minimal damage resulting from reasonable exposure in the
normal course of the consumer's use of
the goods prior to discovery
of the material difference between the goods received and the goods
that the consumer requested.
|
||
(4)
A consumer who acquires a good
that in every way is similar or identical to the one requested or
described and declared by the provider
shall not be entitled to a
refund if, having left the place from which the provider sold the
good, the consumer for any reason decides
that he no longer wants
it.
|
||
28.(1)
Subsection (2) shall apply in
any case where -
|
Return of electrical goods. |
|
(a)
a consumer purchases any
electrical good, believing it to be fully operational; and
|
||
(b)
upon attempting to use it, the
consumer discovers that it is faulty or non-functional.
|
||
(2)
The consumer shall, upon
returning the good to the provider, be entitled to -
|
||
(a)
an exchange of the faulty good
for a new functional similar good free of cost; or
|
||
(b)
a refund of the amount paid for
the good if the provider is unable to establish that the good was
damaged as a direct result of the
consumer's actions.
|
||
29.(1)
Subject to subsection (2), a
provider shall only provide such services as are approved by the
consumer and shall not require a consumer
to sign an open-ended
commitment to pay for services which, in addition to those
contracted, may, in the provider's opinion, be necessary
or
appropriate.
|
Approved and non-approved services. |
|
(2)
The provider's authority to
provide services not approved by the consumer shall be restricted
to ten per cent of the value of the
approved services.
|
||
(3)
A provider who offers a repair
service shall -
|
||
(a)
disclose to the consumer any and
all additional related repairs that he deems necessary for the
consumer to enjoy reasonably long
and uninterrupted use of the
repaired good; and
|
||
(b)
obtain a written indemnity for
the consumer if the consumer chooses to require the provider to
effect the recommended repairs.
|
||
30.
Businesses which offer repair
services to consumers shall keep records stating -
|
Businesses offering repair services. |
|
(a)
the name, address and telephone
number of the consumer;
|
||
(b)
a reasonably accurate description
of the good to be
|
||
repaired; including any identification number or mark; |
||
(c)
the replacement value of the good
in its present state as
|
||
agreed with the consumer; |
||
(d)
an estimate of the labour and
other costs to be paid by the consumer in respect of the repairs to
be effected;
|
||
(e)
the date on which the good was
received for repair; and
|
||
(f)
the date on which the good will
be ready for delivery, and a copy of such information shall be
given to the consumer before the repairs
are commenced.
|
||
31.(1)
No person shall, in the course
of trade or business, engage in conduct that is misleading or
deceptive or is likely to mislead or
deceive.
|
Misleading or deceptive conduct. |
|
(2)
Any person who contravenes
subsection (1) commits an offence and is liable on summary
conviction to a fine not exceeding three thousand
dollars.
|
||
32.(1)
No person shall, in the course
of trade or business engage in conduct that is likely to mislead
the public as to the nature, manufacturing
process,
characteristics, suitability for a purpose or quantity of goods or
services, as the case may be.
|
Misleading public as to the nature, etc., of goods or services. |
|
(2)
Any person who contravenes
subsection (1) commits an offence is liable on summary conviction
to a fine not exceeding two thousand
dollars.
|
||
33.(1)
No person shall, in the course
of trade or business in connection with the supply or possible
supply of goods or services or with
the promotion by any means of
the supply or use of goods or services -
|
False or misleading representation. |
|
(a)
falsely represent that -
|
||
(i)
the goods or services are of a
particular kind, standard, quality, grade, quantity, composition,
style, or model, or have had a particular
history or particular
previous use; or
|
||
(ii)
services are of a particular
kind, standard, quality, or quantity, or that they are supplied by
any particular person or by any person
of a particular trade,
qualification, or skill;
|
||
(iii)
a particular person has agreed
to acquire goods or services;
|
||
(iv)
goods are new, reconditioned, or
that they were manufactured, produced, processed, reconditioned at
a particular time;
|
||
(v)
goods or services have any
sponsorship, approval, endorsement, performance characteristics,
accessories, uses or benefits; or
|
||
(vi)
a person has any sponsorship,
approval, endorsement, or affiliation;
|
||
(b)
make a false or misleading
representation -
|
||
(i)
with respect to the price of any
goods or services;
|
||
(ii)
concerning the need for any
goods or services;
|
||
(iii)
concerning the existence,
exclusion, or effect of a condition, warranty, guarantee, right or
remedy; or
|
||
(iv)
concerning the place of origin
of goods.
|
||
(2)
Any person who contravenes
subsection (1) commits an offence and is liable on summary
conviction to a fine not exceeding five thousand
dollars.
|
||
34.(1)
Where it can be proven that a
provider -
|
Non-delivery of goods or services on contracted date. |
|
(a)
has contracted to provide goods
or services;
|
||
(b)
pursuant to that contract, has
received a deposit in cash or kind; and
|
||
(c)
on the contracted delivery date,
is unable to deliver such goods or services without reasonable
excuse or is unable to demonstrate
that such goods are in a
reasonably advanced state of production, that provider shall be
deemed to have acted in a fraudulent manner
and is liable to be
prosecuted in relation thereto.
|
||
(2)
A provider who is convicted of
an offence under subsection (1) is liable on summary conviction to
a fine not exceeding five thousand
dollars.
|
||
35.(1)
No person shall in the course
of trade, advertise at a specified price, goods or services which
that person does not -
|
Advertising |
|
(a)
intend to offer for supply;
or
|
||
(b)
have reasonable grounds for
believing can be supplied by that person at that price for a period
that is, and in quantities that are,
reasonable having regard to
the nature of the market in which the person carries on business
and the nature of the advertisement.
|
||
(2)
Any person who has advertised
goods or services at a specified price shall offer such goods or
services at that price for a period
that is, and in quantities that
are, reasonable having regard to the nature of the market in which
the person carries on business
and the nature of the
advertisement.
|
||
(3)
Any person who contravenes
subsection (1) commits an offence and is liable on summary
conviction to a fine not exceeding five thousand
dollars.
|
||
36.(1)
An advertised delivery date
for new, used and repaired goods shall form part of the contractual
agreement between the provider and
the consumer.
|
Advertised delivery date. |
|
(2)
Where a provider fails to meet
the advertised delivery date, the provider, as the case may be,
shall refund to the consumer all monies
paid, plus an amount equal
to ten per cent of the amount deposited for each week that the
goods are not delivered commencing after
a period of (not more
than) fourteen days after the advertised delivery date.
|
||
37.
No person shall demand or
accept payment or other consideration for goods or services, if at
the time of the demand or acceptance,
that person -
|
Conditions for payment. |
|
(a)
does not intend to supply the
goods or services;
|
||
(b)
intends to supply goods or
services which are materially different from the goods or services
in respect of which the payment or other
consideration is demanded
or accepted; or
|
||
(c)
does not have reasonable grounds
to believe that the goods or services will be supplied within any
specified period, or if no period
is specified, within a reasonable
time.
|
||
38.
Upon the conviction of a
provider of an offence the court may order the provider to pay to
the -
|
Court may order payment of damages or costs. |
|
(a)
consumer, by way of damages, a
sum representing the costs incurred by that consumer as a result of
the offence, and
|
||
(b)
Consumer Commission such sum as
represents the costs incurred in relation to the prosecution of the
offence.
|
||
39.
In relation to any breach of
duty or obligation, it is immaterial for any purpose of this part
whether the breach was inadvertent
or intentional, or whether
liability for it arises directly or vicariously.
|
Breach of duty or obligation. |
|
40.(1)
A person shall not by
reference to -
|
Excluding or restricting liability by contract. |
|
(a)
any term of a contract;
|
||
(b)
a notice given to persons
generally; or
|
||
(c)
particular persons,
|
||
exclude or restrict his liability for death or personal injury resulting from negligence. |
||
(2)
In the case of other loss or
damage, a person shall not so exclude or restrict his liability for
negligence except in so far as the
term or notice satisfied the
requirement of reasonableness as provided for in section 17.
|
||
(3)
Where a term of a contract or
notice purports to exclude or restrict liability for negligence,
the fact that, that person agrees with
it or is aware of it is not
of itself to be taken as indicating his voluntary acceptance of any
risk.
|
||
41.
No party to a contract shall
-
|
Reliance upon contractual provisions where breach. |
|
(a)
when he is in breach of contract,
exclude or restrict his liability in respect of the breach;
or
|
||
(b)
claim to be entitled to render
-
|
||
(i)
a contractual performance
substantially different from that which was reasonably expected of
him; or
|
||
(ii)
no performance in respect of the
whole or any part of his contractual obligation, except in so far
as the contract term satisfies
the requirement of
reasonableness.
|
||
42.
A consumer shall not in
reference to any term of a contract be made to indemnify another
person (whether a party to the contract or
not) in respect of
liability that may be incurred by the other person for negligence
or breach of contract, except in so far as the
term of the contract
satisfies the test of reasonableness.
|
Indemnity subject to reasonableness. |
|
43.(1)
In the case of goods of a type
ordinarily supplied for private use or consumption, where loss or
damage -
|
Loss or damage from defective goods or negligence of manufacturer. |
|
(a)
arises from the goods proving
defective while in consumer use; or
|
||
(b)
results from the negligence of a
person concerned in the manufacture or distribution of the
goods,
|
||
liability for the loss or damage shall not be excluded or restricted by reference to any contract term or notice contained in or operating by reference to a guarantee of the goods. |
||
(2)
For the purposes of this
section -
|
||
(a)
goods are to be regarded as "in
consumer use" when a person is in possession of them for use,
otherwise than exclusively for the purposes
of a business;
and
|
||
(b)
anything in writing is a
guarantee if it contains or purports to contain some promise or
assurance (however worded or presented) that
defects will be made
good by complete or partial replacement, or by repair, monetary
compensation or otherwise.
|
||
44.
Liability for breach of the
obligations arising from -
|
Effect of Sale of Goods and Hire Purchase Act. |
|
(a)
section 13 (implied undertaking
as to title, etc) and 16 (implied conditions as to quality or
fitness) of the Sale of Goods Act, and
|
Ch. 337. |
|
(b)
sections 9 and 11 of the Hire
Purchase Act, shall not be excluded or restricted by reference to
any contract term.
|
Ch. 342. |
|
45.(1)
Where, for the purpose of
reliance upon it, a contract term has to satisfy the requirement of
reasonableness, it may be found to do
so and be given effect
accordingly notwithstanding that the contract has been terminated
either by breach or by a party electing
to treat it as
repudiated.
|
Satisfying reasonableness where contract terminated. |
|
(2)
Where on a breach the contract
is nevertheless affirmed by a party entitled to treat it as
repudiated, such affirmation does not of
itself exclude the
requirement of reasonableness in relation to any term of a
contract.
|
||
46.(1)
The requirement for
reasonableness in relation to a contract term, is that the term is
a fair and reasonable one to be included having
regard to the
circumstances which were, or ought reasonably to have been, known
to or in the contemplation of the parties when the
contract was
made.
|
Reasonableness. |
|
(2)
The requirement of
reasonableness in this Act in relation to a notice (not being a
notice having contractual effect), is that the
notice should be
fair and reasonable to allow reliance on it, having regard to all
the circumstances when the liability arose or
(but for the notice)
would have arisen.
|
||
(3)
Subsection (4) applies in any
case where, by reference to a contract term or notice, a person
seeks to restrict liability to a specified
sum of money, and the
question arises (under this or any other Act) whether the term or
notice satisfies the requirement of reasonableness.
|
||
(4)
Regard shall be had in
particular (but without prejudice to subsection (2) in the case of
a contract term) to -
|
||
(a)
the resources which the person
could expect to be available to him for the purpose of meeting the
liability if it arises; and
|
||
(b)
how far it was open to that
person to cover himself by insurance.
|
||
(5)
It is for those claiming that
a contract term or notice satisfies the requirement of
reasonableness to show that it does.
|
||
47.
Any written contract formed
between a consumer and a provider shall include a clause providing
for the parties to attempt to settle
their disagreements through
mediation by the Consumer Commission before taking the matter to
court.
|
Alternative dispute resolution. |
|
48.(1)
This section applies to any
case where a provider contracts to provide a consumer with a good
or service over an extended period of
time, and that provider
contracts to receive periodic payments from the consumer for the
good or service.
|
Goods or services acquired by installment. |
|
(2)
The provider shall -
|
||
(a)
be required to present an
accurate claim for the exact amount of, or the exact percentage of,
the total value of the good or service
actually received to date by
the consumer; and
|
||
(b)
upon presentation of such
accurate claim, be entitled to void the contract if payment in full
is not made within a reasonable time
after the presentation of the
claim, or by a pre-determined payment date which forms part of the
contract.
|
||
(3)
In the event that the provider
is unable to present an accurate claim, the provider, may act in
accordance with subsection (4).
|
||
(4)
The provider may -
|
||
(a)
present the consumer with an
estimated claim; and
|
||
(b)
if the estimated claim is
reasonably accurate, request that the consumer pay the estimated
amount on the conditions specified in subsection
(5).
|
||
(5)
The conditions referred to in
subsection (4) are that -
|
||
(a)
where the amount estimated is
greater than the accurate claim, the amount paid by the consumer
will be credited to the amount owing
at the next time that an
accurate claim is presented; and
|
||
(b)
the provider shall under no
circumstances, be able to void the contract or impose any penalty
therein contained in the event of breach
by the consumer, solely on
the ground that the estimated amount has not been paid by the
consumer, either in full or in part.
|
||
(6)
A provider who presents an
estimated claim for any good or service shall be required to
present an accurate claim no later than 90
days after presentation
of the estimate.
|
||
(7)
Subsection (6) shall apply
notwithstanding that the consumer of the good or service does not
pay the estimated amount claimed or pays
it in full or in
part.
|
||
49.(1)
Where a service is provided to
a consumer -
|
Apportionment of payments where service not received. |
|
(a)
the provider is deemed to be
providing the consumer with a benefit under the relevant contract;
and
|
||
(b)
the provisions of subsection (2)
shall apply where a fee is collected from the consumer for that
service.
|
||
(2)
The provider shall -
|
||
(a)
be liable to make a full refund
to the consumer, if for reasons not attributable to the consumer,
the benefit is not received by the
consumer; or
|
||
(b)
where the benefit is received
only in part -
|
||
(i)
refund a proportionate part of
the fees collected; or
|
||
(ii)
subject to subsection (3), be
entitled to receive a similar proportionate part of the fees if not
yet paid.
|
||
(3)
Subsection (2) shall not apply
in any case where the consumer contracts to pay the provider the
prescribed fee regardless of whether
the consumer receives the
benefit.
|
||
(4)
The provider who offers a
service to the consumer shall -
|
||
(a)
be required to stipulate the
extent of the benefit that shall be deemed to be attached to the
service; and
|
||
(b)
provide the consumer with an
appropriate warranty that -
|
||
(i)
the benefit shall be enjoyed for
a reasonable time, subject to the fulfillment of such conditions
attached by the provider as may
be reasonable to the consumers
enjoyment of that benefit; and
|
||
(ii)
in the absence of the enjoyment
of the benefit, the provider shall again provide the service free
of cost to the consumer.
|
||
50.(1)
A provider commits an offence
if he -
|
Purporting to act on a Bill of Sale. |
|
(a)
acts on the powers contained in a
Bill of Sale of chattel pledged by a consumer; and
|
||
(b)
employs any person other than a
constable, or a bailiff to recover any or all of the chattels
pledged in the Bill of Sale to the provider
in the event of default
in repayment of a loan.
|
||
(2)
A provider who commits an
offence under subsection (1) shall, upon summary conviction be
liable to a fine not exceeding five thousand
dollars.
|
||
(3)
A provider commits an offence
if he, in taking action to recover any or all of the chattels
pledged by the consumer in the Bill of
Sale to the provider in the
event of default in repayment of a loan, carries out an act of
seizure although the consumer's indebtedness
to the provider has
already been discharged or is currently being serviced in
accordance with existing contractual provisions.
|
||
(4)
A provider who commits an
offence under subsection (3) shall, upon summary conviction be
liable to a fine not exceeding one thousand
dollars.
|
||
(5)
The court may order a provider
convicted of an offence under subsection (3) to pay the consumer an
amount equal to ten times the market
value of the chattels seized
plus an amount of fifty dollars per day for every day that the
consumer has been deprived of the use
and enjoyment of those
chattels.
|
||
(6)
The court may order a provider
convicted of an offence to compensate the consumer for all expenses
reasonably incurred as a result
of the breach and the legal
action.
|
||
(7)
A person commits an offence
who -
|
||
(a)
not being a Bailiff, purports to
be a Bailiff; or
|
||
(b)
being a Bailiff, wrongfully
seizes the chattels of a consumer.
|
||
(8)
A person who commits an
offence under subsection (7) shall upon summary conviction be
liable to a fine not exceeding five thousand
dollars.
|
||
(9)
The Court may order a person
convicted of an offence under subsection (8) to pay the consumer an
amount equal to ten times the market
value of the chattels seized
plus an amount or fifty dollars per day for every day that the
consumer has been deprived of the use
and enjoyment of those
chattels.
|
||
(10)
Any bailiff or person
purporting to be a Bailiff who -
|
||
(a)
threatens to seize the chattels
of a consumer under the powers contained in a Bill of Sale although
the consumer's indebtedness to
the provider has already been
discharged; or
|
||
(b)
recklessly damages the chattels
of a consumer while exercising distraint,
|
||
commits an offence and shall, upon summary conviction be liable to a fine not exceeding five thousand dollars. |
||
51.(1)
All providers acting
individually or collectively, and offering goods or services to
consumers for purchase, shall be appropriately
registered as
companies, partnerships, co-operatives, sole proprietorships or
informal commercial operators.
|
Registration of providers. |
|
(2)
The instruments of
registration and licence where applicable, or any official number
or identification mark issued by the relevant
authorities shall be
conspicuously displayed by the provider for viewing by the
consumer.
|
||
(3)
A provider who fails to comply
with the provisions of this section commits an offence and is
liable on summary conviction to a fine
of one thousand
dollars.
|
||
52.
The Minister may make
regulations for the purposes of giving effect to the provisions of
this Act.
|
Regulations. |
|
FIRST SCHEDULE |
||
1.(1)
The Consumer Commission shall
consist of a chairman, a deputy chairman and not less than five nor
more than nine other members appointed
by the Governor-General on
the advice of the Minister from persons appearing to be qualified
in the areas of law, industry, commerce,
agriculture, banking and
finance, transportation, administration or organization of
workers.
|
Constitution of the Consumer Commission. |
|
(2)
The Permanent Secretary of the
Ministry responsible for Consumer Affairs or a person designated by
the Permanent Secretary shall be
an ex officio member of the
Consumer Commission.
|
||
2.
A member of the Consumer
Commission other than the ex officio member shall hold office for
such period, not exceeding three years
as the instrument of
appointment may direct, but such member shall be eligible for
reappointment.
|
Tenure. |
|
3.
The Minister shall appoint a
chairman and a deputy chairman of the Consumer Commission from
among members appointed under paragraph
1 and if the chairman is
absent or unable to act, the deputy chairman shall act as chairman
during the time the absence or inability
continues.
|
Chairman and deputy chairman. |
|
4.
A member of the Consumer
Commission other than the ex officio member, may at any time resign
his office by instrument in writing addressed
to the Minister and
from the date of receipt by the Minister of the instrument that
member shall cease to be a member of the Consumer
Commission.
|
Resignation. |
|
5.
The Governor-General on the
advice of the Minister may, by instrument in writing remove a
member of the Consumer Commission upon being
satisfied that the
member -
|
Removal. |
|
(a)
is an undischarged
bankrupt;
|
||
(b)
is, for whatever reason
permanently incapable of performing the duties of a member;
|
||
(c)
has neglected the duties of a
member or has engaged in misconduct; or
|
||
(d)
has been convicted of an
indictable offence.
|
||
6.
The appointment, removal,
death or resignation of a member to the Consumer Commission shall
be notified in the Gazette.
|
Publication. |
|
7.
There shall be paid to the
chairman and other members of the Consumer Commission such
remuneration, if any, as the Minister may determine.
|
Remuneration. |
|
8.(1)
The Consumer Commission shall
meet as often as may be required for the performance of its
functions, but in any event, shall meet
at least once a
month.
|
Meetings. |
|
(2)
The chairman, or in his
absence the deputy chairman, shall preside at all meetings of the
Consumer Commission.
|
||
(3)
The chairman, or in his
absence the deputy chairman, and three other members of the
Consumer Commission shall form a quorum.
|
||
(4)
The decisions of the Consumer
Commission are by a majority of votes and in any case in which the
voting is equal, the member presiding
at the meeting shall have, in
addition to an original vote, a casting vote.
|
||
(5)
Minutes of each meeting in
proper form are to be kept by the secretary or any officer the
Consumer Commission may appoint for that
purpose, and confirmed by
the Consumer Commission at the next meeting and signed by the
chairman or a member of the Consumer Commission
designated by the
chairman as the case may be.
|
||
(6)
The Consumer Commission may
co-opt any one or more persons to attend any particular meeting of
the Consumer Commission for the purpose
of assisting or advising
the Consumer Commission in any matter with which the Consumer
Commission is dealing, but no co-opted person
has the right to
vote.
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(7)
Where a quorum is present, the
validity of any proceeding of the Consumer Commission shall not be
affected by any vacancy amongst
the members thereof by any defect
in the appointment of a member.
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9.
Subject to this Schedule, the
Consumer Commission has the power to regulate its
proceedings.
|
Authority to regulate its proceedings. |
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SECOND SCHEDULE |
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SUMMONS TO WITNESS |
||
To : (name of person summoned and his or her address, if known) |
||
You are
hereby summoned to appear before the Consumer Commission,
established under the Consumer Protection Act,
at (place) on the
day |
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URL: http://www.commonlii.org/bs/legis/num_act/cpa2006246