Who reads the terms and conditions of a sales contract before signing it? We all should but, in reality, only a few people actually read contracts. Unfortunately, we only read a contract when we encounter a problem and want to double check what we have originally agreed to with the seller.
What if we order furniture and this is not delivered on the date agreed or we get a different version? What happens if, at this point, we find out that the contract does not include all the details of the sale? Or if the promised delivery date is not written on the contract? Or if there is no detailed description of the goods?
It is our responsibility to carefully read contract clauses before signing standard contracts. We should also ensure that the contract we are signing includes the agreed price, the method of payment, a description of the goods or services purchased, the agreed delivery date and also the contact details of the trader. If we paid a deposit, we should also make sure we are given proof of payment and that the deposit paid is included in the contract of sale.
We should also be aware that the contracts we sign may include clauses that diminish or restrict our rights. Legally, such rights are considered unfair and cannot be enforced by the trader. The Consumer Affairs Act lists a number of terms that are considered unfair. Among these we find terms that try to prevent consumers from exercising their legal rights when the seller is at fault.
Other unfair terms include those that allow the trader to retain sums consumers paid should they decide not to proceed with the sale, but the same contract prohibits consumers from asking for compensation if it is the trader who does not honour the sales agreement.
Moreover, consumers cannot be requested to pay to the trader as compensation a sum which is disproportionately high to the value of the goods or services provided. Another contract term considered to be unfair is that which allows the trader to change significantly what the consumer is buying without giving the latter the chance to withdraw from the contract.
It is also prohibited to irrevocably bind consumers to terms which they had no real opportunity of becoming acquainted with before the conclusion of the contract.
The law protects consumers from such terms by prohibiting sellers from enforcing them even though consumers accept them and sign for them. However, an unfair term in a consumer contract does not nullify an entire contract unless the contract does not make sense without that term. Furthermore, consumer contracts should be written in plain and intelligible language that can be easily understood. In fact, the law provides that when doubt arises about the meaning of a term it is the most favourable interpretation to consumers that should prevail.
Even though we are legally protected against unfair contract terms, it is still our responsibility to carefully read a contract before signing it. We should also remember that contract clauses we are not comfortable with may be re-negotiated. Furthermore, when we are not sure about the meaning of a term, it is important that we request a clarification and more information before concluding the sale.
If, as consumers, we have a dispute with traders about a term which we have in our contract, or we do not agree on the interpretation or enforcement of a contract term, we may lodge a complaint with the Office for Consumer Affairs within the Malta Competition and Consumer Affairs Authority to verify whether the contract term is unfair. If it is, we should ask for help on how to proceed.
Odette Vella is director, Information, Education and Research Directorate, Office for Consumer Affairs, Malta Competition and Consumer Affairs Authority.