Consumer protection law rests on the foundations of contract law and the law of sale of goods. A consumer law has to conceptually express this foundation and the modifications it is bringing about in these laws. Without this, the law would become unclear, conflicting and confusing. The Consumer Protection Bill, 2015 is not secured in its foundation and needs revision. The paper reviews the rights of the consumer to terminate the contract and makes suggestions for revision. The suggestions, with brief comments are as follows:
1. Unfair Contract Term
The bill declares an unfair contract term to be void. The sale of Goods Act, 1930 gives the right to a buyer to terminate a contract if the supplied goods do not meet the description, are not of merchantable quality or are not fit for the agreed purpose. Ousting of these by contract terms is a deprivation of a right created by the law. This is an unfair contract term and taken to be so in other jurisdictions. The bill should give effect to this by making the following addition:
Ousting of implied conditions and warranties void: The implied conditions and warranties created for the buyer in the Sale of Goods Act, 1930 cannot be limited or excluded by contract terms. A contract term ousting the implied conditions and warranties is void.
2. Rights of the buyer to terminate a sale contract
The rational and logical way of organising the law is to mention the rights of the consumer. A consumer could approach a consumer council for the redressal of the rights. The bill does not mention the rights of a consumer. Under the Sale of Goods Act, 1930, the buyer has certain rights to terminate the contract. The followings could be introduced on the rights of the buyer to terminate a contract:
Termination of contract for breach of quality of goods. A consumer has the right to terminate the contract on the grounds of quality of goods in the following situations:
(1) The seller delivers goods which do not meet any of the express conditions in the contract or implied conditions arising from the contract. The consumer can terminate the contract within 30 days of delivery. If the contract provides a longer period for terminating the contract, the consumer can terminate the contracted during the period mentioned in the contract.
(2) The seller delivers goods which do not meet any of the implied conditions created for the buyer in the Sale of Goods Act, 1930. The consumer can terminate the contract within 30 days of delivery.
(3) The buyer has a right to terminate the contract on the ground of the seller delivering goods which are in breach of express or implied condition but elects to get the goods repaired or replaced. Following this, the seller repairs or replaces the goods. The repaired or replaced goods continue to be in breach of an express or implied condition or need further repair and replacement. The consumer can terminate the contract within 10 days of the seller delivering the repaired goods or goods in replacement.
(4) The buyer does not have a right to terminate the contract but a right to repair or replacement. Following this, the seller repairs or replaces the goods. The supplied goods continue to need a repair or replacement.
Termination for delay in delivery: A consumer has the right to terminate the contract for a delay in delivery in the following situations:
(1) The contract provides for a delivery schedule. The delivery of goods on schedule is of essence to the contract and the seller fails to deliver the goods on schedule.
(2) The contract provides for a delivery schedule. The delivery of goods on schedule is not of essence to the contract and the seller fails to deliver the goods within a reasonable period of the schedule.
(3) The contract does not provide a delivery schedule. The seller fails to deliver the goods within a reasonable period after formation of the contract.
(4) The contract provides for a delivery schedule but the consumer agrees to an extension of the schedule. The seller fails to deliver within the extension period.
3. Powers of Consumer Council
A consumer can approach a Consumer Council for the enforcement of the rights. A Consumer Council should be generally vested with the powers to issue orders and directions to enforce the rights. The specific powers should include powers corresponding with the rights of the consumer. The following could be the powers of the Consumer Council on the rights of the consumer to terminate a contract.
Powers of Consumer Council: The Consumer Council can issue orders to the consumer, trader or an opposite party for the enforcement of the rights of the consumer. The orders can include one or a combination of the followings:
1. Order the parties that the contract is terminated.
2. Order the trader to return any money paid by the consumer with or without interest.
3. Order the consumer to return the goods to the trader.
4. Order the trader to restore any benefit or money equivalent of the benefit drawn from the consumer.
5. Order the consumer to restore any benefit or money equivalent of the benefit drawn from the trader.
