By Jonathan Tan, Lecturer, Faculty of Law
With the evolution of technology in the manufacturing line, delivery of goods and services, and shopping experiences such as online shopping, digital payments and self-help kiosks at physical shop premises, as purchasers of goods and subscribers of services, we need to know the basics of our available legal rights and duties as consumers and be aware of the legal implications that we may have when placing orders to make purchases.
The moment a person uses or acquires goods or services for his or her personal, domestic or household use or consumption, such person is regarded as a consumer, which is of a B2C transaction, and the relevant laws that govern that consumer’s rights and duties include Contracts Act 1950 (“CA 1950”), Consumer Protection Act 1999 (“CPA 1999”), Sale of Goods Act 1957 (“SOGA 1957”) for Peninsular Malaysia, and the United Kingdom’s English law of Sale of Goods Act 1979 (“SOGA 1979”) for Sabah and Sarawak as enabled by Section 5(2) of the Civil Law Act 1956 (“CLA 1956”) which was concurred by the Federal Court in the case of Tan Chong & Sons Sdn Bhd v Alan McKnight [1983] 1 MLJ 220, although in modern times regard for Sabah and Sarawak has to be made to a newer English B2C law as well, namely the Consumer Rights Act 2015 (“CRA 2015”), upon literal interpretation of the s.5(2) of the CLA 1956.
Your rights as a consumer
As consumers, we have the right to expect from the sellers of goods that the sellers have the right to sell the goods to us at the time of purchase (s.14(a) SOGA 1957; s.17 CRA 2015); that the goods must correspond with its description (s.15 SOGA 1957; s.11 CRA 2015); that the goods must be fit for a particular purpose that you make known to the sellers (s.16(1)(a) SOGA 1957; s.10 CRA 2015); that the goods shall be of merchantable quality (s.16(1)(b) SOGA 1957; s.9 CRA 2015 uses the phrase ‘satisfactory quality’); that the goods must match the sample that the sellers refer to you (s.17(2) SOGA 1957; s.13 CRA 2015), among others. These implied terms are known as conditions which mean if the sellers fail or do not comply with the conditions, you have the right to reject the goods and claim damages.
In addition, we have the right to enjoy quiet possession of the goods that we purchased from the sellers (s.14(b) SOGA 1957; s.17(2)(c) CRA 2015), free from any charge or encumbrance in favour of any third party until the ownership of the goods is to be transferred (s.14(c) SOGA 1957; s.17(2)(b) CRA 2015), to name a few. These implied terms are known as warranties which means if the sellers fail or do not comply with the warranties, you have the right to claim damages but do not have the right to reject the goods.
Unless there is a contrary evidence, the general rule is that the goods remain at the sellers’ risk until the goods are transferred to you (see s.26 SOGA 1957; s.29 CRA 2015). Thus, the sellers have a duty to deliver the goods that you purchased to you in time unless you agreed with the sellers otherwise (ss. 11 and 31 SOGA 1957; s.27 SOGA 1979; s.28 CRA 2015).
In addition to claiming damages for breach of sale of goods contract, or right to rescind the contract when there is a breach of condition on the sellers’ part, in appropriate circumstances you may also have the right to seek a remedy of a decree of specific performance from court which means, if granted by the court, the sellers are liable to specifically sell and/or deliver the goods to you. In such cases, the sellers will not be allowed to choose an option of retaining your goods and merely paying damages to you (s.58 SOGA 1957; Chapter II of the Specific Relief Act 1950). However, this remedy is up to the courts’ discretion on case-to-case basis which means you are not automatically entitled to claim for such remedy, subject to the legal rules of equity.
Accordingly, if there is a defect in the goods or product purchased such that the safety of the product is not what you would generally expect (s.67(1) CPA 1999) and such defect causes either personal injury or death or damage to other property, you may claim damages against the producers of the product, or those who put names or trademarks on the product to hold themselves as producers, or those who import such product (s.68(1) CPA 1999).
So what differentiates your right to claim damages from the breach of sale of goods under SOGA 1957, SOGA 1979 and CRA 2015 and from that of product liability under CPA 1999 is that the former is applicable to breach of sale of goods, including defect to the goods themselves, whereas the latter is applicable only when the defective goods cause damage to other property or harm to person in the form of personal injury or death, not on damage to the goods itself.
Meanwhile, in the context of services, if you have contracted (subscribed) for services, the service suppliers must adhere to the safety standards prescribed by the Minister in charge of the Ministry of Domestic Trade And Consumer Affairs (ss.19 and 20 CPA 1999), in which there will be implied guarantees from service suppliers to you that the service shall be carried out with reasonable care and skill (s.53, CPA 1999); that the service must be fit for a particular purpose which you make known to the suppliers (s.54 CPA 1999); that the service shall be completed within a reasonable time (s.55 CPA 1999); that the service is to be paid with a reasonable price (s.56 CPA 1999), among others. Failure by the service suppliers to fulfill one or more of these may entitle you to seek redress against the service suppliers (Part IX, CPA 1999).
Your duties as a consumer
Notwithstanding your rights as expounded above, as a consumer, you must exercise due diligence to check or verify the quality or quantity of goods or services before you decide to purchase or place orders of them if such opportunity is available for you to do so. Please make sure that you are alright or satisfied with the goods or services that you desire to have, because under the rule of ‘caveat emptor’, the sellers or service suppliers will not be held liable if you later on change your mind and want to seek for refund from them.
In relation to goods, although product liability (damage to other property or to person) cannot be excluded or limited in any way (s.71 CPA 1999), the implied terms for sale of goods (that impose liability on matters concerning the goods) can be varied or negatived by the sellers (s.62 SOGA 1957). While this seems to be the position for Peninsular Malaysia, consumers in Sabah and Sarawak seem to have better protections from s.31 of CRA 2015 which stems out from its predecessor in s.55 of SOGA 1979: s.31 of CRA 2015 connotes that most of the prescribed protections for consumers under CRA 2015 cannot be excluded or restricted.
In relation to services, you have to be aware of s.58 of CPA 1999, in which you cannot seek redress against the service suppliers if the failure of the services or any product from the services to comply with the implied guarantees of service is due to the default, act, or omission of, or any representation made by, a person other than such service suppliers, or such non-compliance with the implied grantees of service is due to a cause independent of human control.
Needless to say, by the rules of contract law on performance, you have a duty to pay for the goods or services ordered. S.31 of SOGA 1957 and s.27 of SOGA 1979 respectively are wide enough to cover COD purchases, which also mean when the goods are delivered to you or are ready for collection, you cannot wrongfully neglect or refuse to accept and pay for the goods, or else the sellers may in turn sue you for damages for non-acceptance (s.56 SOGA 1957; s.50 SOGA 1979).
Regardless of the above, you have a duty, as a consumer, to at least take a few minutes to read all the terms of a contract for sale of goods or services before you decide to make order or purchase, because whether or not you have read the terms, once you sign the contract to buy goods or subscribe a service, all the terms of such contract, both favourable or unfavourable ones, will be binding on you automatically (L’Estrange v Graucob [1934] 2 KB 394) that you would have to comply with them. And in the light of modern technology, your signature does not consist only of manual handwritten signature, but also digital signature (s.2(1) Digital Signature Act 1999) and electronic signature (ss.5 and 9 Electronic Commerce Act 2006) in the form of anything that can adequately indicate your approval, like a common “Yes, I confirm” digital button, or even SMS (Yam Kong Seng &. Anor v Yee Weng Kai [2014] 6 CLJ 285). Hence, if you do not agree with one or more of the terms of the proposed contract for sale of goods or services, it is advisable that you do not proceed with the confirmation or payment for the goods or services, unless you seek clarification from the sellers or service suppliers and are well understood of the nature and consequence of the term(s), or in exceptional circumstance, the sellers or service suppliers agree to vary the non-agreeable term(s) for you and you are agreeable to such variation.
The above sums up some of the basic features of rights and duties that you have as a consumer. Be a prudent and a wise consumer the next time you desire to buy goods or book for services.
Disclaimer: This article is for general knowledge purposes only and neither the author nor the publisher herein warrants this as a legal advice. You are advised to approach legal practitioners for advice regarding any legal concerns.