When we purchase certain products or services, we need to sign a contract. Unfortunately, before doing so, most of us do not stop and read the terms and conditions of these contracts.

Thus we risk unpleasant surprises. In fact, we only refer back to the signed contract when a problem crops up and we want to check what we have originally agreed to when concluding the sale.

Before signing a sales agreement, it is our responsibility to verify that what we have agreed to is actually included in the contract. Sales contracts should include a clear description of the goods or services purchased, the price, the agreed delivery date, if any, and also the contact details of the trader.

If, after taking these precautions, we inadvertently sign for terms and conditions that limit our legal rights, we should be aware that unfair terms are prohibited. The Consumer Affairs Act lists a number of contract terms that are considered to be unfair. Among them we find terms that try to prevent us from exercising our legal rights when the seller is at fault. A case in point is when services or goods ordered are not delivered on the agreed date or are not as agreed to in the contract of sale. In such situations, we have the right to terminate the sales agreement and no contract clause can take away this right.

Other unfair terms include terms that allow the trader to retain sums we paid  should we decide not to proceed with the sale, but the same contract prohibits us from requesting compensation if it is the trader who does not honour his part of the agreement.

Terms which exclude or limit the liability of a trader for every possible eventuality are also considered unfair. It is also prohibited to irrevocably bind consumers to terms that were hidden to consumers until after they sign the contract.

Unfair terms, even though accepted and signed for, are not legally binding and hence cannot be enforced by the trader. However, an unfair term in a consumer contract does not nullify an entire contract. It is the unfair term that becomes ineffective, and the rest of the contract is normally valid unless the contract is unworkable without that term.

Furthermore, the law stipulates that consumer contracts should also be written in plain and intelligible language that can be understood by the average consumer. Should a term be ambivalent, or any doubt arises about the meaning of a term, the law provides that the interpretation most favourable to the consumer prevails.

Even though we are legally protected against unfair contract terms, it is still our responsibility to carefully read a contract before signing it. If while doing so we encounter clauses we do not understand or feel are unsuitable to our situation, it is important that we discuss and clarify these with the seller before signing the sales agreement. Should we notice any unfair clauses, we must in the first instance draw the attention of the seller to the unfairness of the contract and, if the issue remains unresolved, seek the assistance of the Office for Consumer Affairs within the Malta Competition and Consumer Affairs Authority.

odette.vella@mccaa.org.mt

Odette Vella is director, Information, Education and Research Directorate, Office for Consumer Affairs, Malta Competition and Consumer Affairs Authority.

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