From the Bench
With Adv. Louis Nel.
STANDARD TERMS AND CONDITIONS
– PART 1 –
WHAT YOU’RE ENTITLED TO AND MUST DO
It is amazing how many businesses seem to be under the impression that the only thing the CPA has an impact on is their Terms and Conditions (T&C) and that if they ‘fix’ that, they’re fully CPA complaint! As I’ve stated a number of times, that’s just one of the contract management jigsaw pieces, but not a bad place to start.
Firstly I’ll deal with the matters you must attend to when reviewing your T&C and in the next installment I’ll deal with what you should not, and in fact are prohibited, from doing.
At the outset the misconception that you are not entitled to have T&C must be buried. You are fully entitled to have T&C provided the content and how you introduce it to the consumer are both CPA compliant.
The overriding consideration is that the content must be ‘fair, just and reasonable’ (48) viewed objectively. The test for the latter is somewhere between the consumer’s and industry’s perspective.
As you may be aware a consumer can treat goods as unsolicited and reject and return them if not provided on the time, date and at the place quoted (19.6 & 21.1.c). Avoid this by providing adequate wording entitling you to provide the goods on an alternative date, time and place.
Your T&C as well as any ‘notice, document or visual presentation’ must be in ‘plain language’ (22). You have to read through all your material and ensure that complex language and legalese is excluded or adequately explained.
The CPA wants to avoid unscrupulous suppliers hiding behind restrictive T&C. It requires suppliers to draw the consumer’s attention to any T&C which limits the consumer’s rights, amounts to an assumption of risk or liability or has the effect of the consumer indemnifying any party or acknowledging any fact (49). The supplier must also explain ‘the fact, nature and potential effect’ of any ‘unusual’ or ‘not reasonable expected’ risk and risks where the access or activity may entail the possibility of injury or death e.g. horse-riding, quad-biking, white water rafting, etc.
The aforesaid must be done at the earliest of the following: when the customer enters into the contract, pays, enters the premises or participates in the activity.
I would suggest that a narrow, conservative view of the above be taken, and suppliers must thus look beyond the norm and include in the term ‘unusual’ or ‘not reasonable expected’. Issues such as non-refundable deposits and the minefield relating to passports, visas and health requisites spring to mind.
Disclaimer: This article is intended to provide a brief overview of legal matters pertaining to the travel and tourism industry and is not intended as legal advice. © Adv Louis Nel, BENCHMARK, October 2012.
