Report No. 199

Section 62 of the Sale of Goods Act states:

"Section 62: Exclusion of implied terms and conditions:

Where any right, duty or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties or by usage, if the usage is such as to bind both parties to the contract."

The provision in UK and other countries do not permit one party to exclude the various rights, duties or liabilities of one or other parties under contracts, particularly in relation to sale of goods. Even terms implied by course of dealing or usage will be subject to section 9. The Sale of Goods Act, 1930 which is generally applicable to most contracts relating to goods sold or supplied to consumers permits one party to escape from its duties and liabilities or exclude rights of consumers which are contained in that Act. Such provisions are considered inherently obnoxious, unless there is adequate justification.

We, therefore, propose section 10 as follows:

"Exclusion or restriction of rights, duties or liabilities referred to in section 62 of the Sale of Goods Act, 1930 (3 of 1930) to be substantively unfair unless there is adequate justification

10. In contracts to which this Act applies as stated in subsection (1) of section 18, any exclusion or restriction of the rights, duties or liabilities referred to in section 62 of the Sale of Goods Act, 1930 (3 of 1930) shall be deemed to be substantively unfair unless there is adequate justification therefor."

The Zimbabwe Consumer Contracts Act contains guidelines in section 5 (1)(d) as follows:

"(d) If the consumer contract excludes or limits obligations or liabilities of a party to an extent that is not reasonably necessary to protect its interest."

In the Schedule to the Act, it is stated that 'any provision whereby the seller or supplier of goods, other than used goods, excludes or limits his liability for latent defects in the goods' may be treated as unfair by the Court. Likewise if it excludes or limits liability of seller or supplier of goods or service.

Such a provision is also contained in Article 3(3)(b) of the European Directive which refers to "inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non performance or inadequate performance by the seller or supplier, of any contractual obligations.

(The above provision is on the lines contained in section 13(2) of the Bill attached to the UK & Scottish Law Commission's Report, 2004).