Consumer Affairs Act (Cap. 378), article 44

44. (1) It shall be unlawful in consumer contracts to use unfair terms, or terms or combination o f terms which are unfair in tha t they have as an object or effect any of the objects and effects referred to in sub-article (2), and any term prohibited as aforesaid inserted in any consumer contract shall be deemed never to have been so inserted. (2) The terms referred to in sub-article (1) include terms which have the object or effect of - (a) excluding or limiting the liability of a trader by reason of his own fraud or gross negligence or that of his employees or agents, or by reason of any failure to fulfil an obligation constituting one of the fundamental elements of the contract; (b) establishing an unreasonably short period for notifying the trader of any defects; (c) excluding or limiting the legal rights of a consumer against the trader in the ev ent of total or partial non- performance or inadequate performance by the trader of any of his contractual obligations; (d) prohibiting the consumer from offsetting a debt owed to the trader against a cl aim which the consumer may have against the same trader; (e) making an agreement binding on the consumer whereas the provision of services or goods by the trader is subject to a condition whose realisation depends solely on the will of the trader; (f) allowing the trader to retain sums paid by the consumer if the consumer decides not to conclude or CONSUMER AFF AIRS [CAP. 378. 41 perform the contract, without providing for the consumer to receive compe nsation of an equivalent amount from the trader where the trader is the party cancelling the contract; (g) requiring a consumer who fails to fulfil his obligation, to pay to the trader as compensation a sum which is disproportionately high to the value of the goods or services purchased or hired; (h) determining the compensation payable by a consumer who fails to fulfil his obligations, without providing for compensation of the same magnitude by the trader who fails to fulfil his; (i) limiting the means of proof which the consumer can use; (j) causing the consumer to waive any ground of claim against the trader in the event of a dispute; (k) prohibiting the consum er from seeking the cancellation of the contract i f the trader fails to fulfil his obligations; (l) restricting the right of the consumer to cancel the contract if the trader, in co nnection with any guarantee or warranty given, does not fulfil his obligation or fails to do so within a reasonable period; (m) irrevocably binding the co nsumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract; (n) enabling the trader to alter the terms of a contract unilaterally, without a valid reason which is specified in the contract; (o) enabling the trader to alte r unilaterally, without a valid reason, any characteristics of the product or service to be provided; (p) providing for the price of goods to be determined at the time of delivery by the trader or allowing him to increase the price without in any case giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the c ontract was concluded; (q) causing the price to vary by reference to factors depending only on the will of the trader; (r) giving the trader the right unilaterally to determine whether the goods or services supplied are in conformity with the contract; (s) giving the trader the exclusive right to interpret any term of the contract; (t) limiting or eliminating the obligation of the trader to respect commitments undertaken by his agents or employees; 42 CAP. 378.] CONSUMER AFF AIRS (u) obliging the consumer to fulfil his obligations where the trader does not perform his; (v) allowing the trader the possibility of transferring all his rights and obligations under the contract where this may serve to reduce the guarantees or warranties for the consumer, without the consent of the consumer; (w) providing for an immediate and final commitment by the consumer on signature of the contract, with the trader contracting subject to a condition the fulfilment of which depends only on the will of the trader; (x) permitting the trader to establish or alter unilaterally the period for delivering goo ds or supplying a service; (y) excluding or limiting the legal liability of a trader or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that trader or supplier; (z) authorizing the trader or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the trader or supplier to retain the sums paid for services not yet supplied by him where it is the trader or supplier himself who dissolves the contract; (aa) enabling the trader or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so; (bb) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express this desire not to extend the contract is unreasonably early; (cc) excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes to arbitration not covered by legal provisions, unduly restricting the evidence av ailable to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract. (3) The Minister may, after consulting the Council, by regulations amend, substitute or revoke any of the terms listed in sub-article (2). (4) The list of terms laid down in sub-article (2) is not an exhaustive list, and accordingly nothing containe d in sub-artic les (1) and (2) shall be construed as limiting or otherwise prejudi cing the generality of the provisions of article 45. (5) In this Part, the term "goods" shall include immovable property. CONSUMER AFF AIRS [CAP. 378. 43 Meaning of an unfair term. Added by: XXVI. 2000.15. Amended by: II. 2008.23.