The CPA and Supplier Rights – PART 2

The CPA and Supplier Rights

From the Bench
With Adv. Louis Nel.

STANDARD TERMS AND CONDITIONS  
– PART 2 –
WHAT YOU ARE NOT ENTITLED TO DO

What does the CPA prohibit or restrict you from doing? The primary section is 48 (which must be read with regulation 45), which determines that any price, condition and term of any agreement must not be unfair, unreasonable or unjust.

It the supplier requires the consumer to waive a right, assume an obligation or waive the suppliers liability, the terms must not be unfair, unreasonable or unjust.

It furthermore states that it will be regarded as such if it is:

• excessively one-sided;
• so adverse to the consumer as to be inequitable;
• unconscionable;
• (i.e. the fact, nature and effect of the term, condition or notice) not drawn to the attention of the consumer in a manner that satisfied the applicable requirements of section 49.

The secondary section is 51 which amongst others preclude suppliers from the following:

• Limiting liability to or excluding liability for its gross negligence;
• Requiring consumers to enter into an agreement with it or a third party that defeats the purposes of the CPA;
• Falsely requires a consumer to acknowledge that no representations or warranties were made.

Regulation 45 (issued in terms of section 120) prohibits a number of clauses e.g.

• Excluding liability for injury or death due to an act or omission of the supplier;
• Clauses that one-sided to the effect that the right is only extended to the supplier e.g. price increases and termination with no concomitant right to the supplier to cancel; amending terms; interpreting clauses; right to cede and assign and renew.