scholarly journals Exemption Clauses and the Consumer Protection Act 68 of 2008: An Assessment of Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ)

2017 ◽  
Vol 17 (3) ◽  
pp. 1194 ◽  
Author(s):  
Yeukai Mupangavanhu
Keyword(s):  
Consumer Protection ◽  
Standard Form ◽  
Court Decision ◽  
Freedom Of Contract ◽  
Consumer Protection Act ◽  
State Of Affairs

Exemption clauses are a rule rather than an exception particularly in standard-form contracts. Consumers are usually forced to accept such terms on a "take-it-or-leave-it" basis. This state of affairs shows that freedom of contract is theoretical and could lead to injustices. In Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ) the Court refused to uphold the exemption clauses based on the fact that it would have been unfair and unjust to the plaintiff who had sustained serious bodily injuries during his stay at the hotel. The article discusses this court decision in the light of the provisions of the Consumer Protection Act 68 of 2008 (CPA) against the background of the previous jurisprudence regarding exemption clauses, including the position of exemption clauses in a new constitutional dispensation.

scholarly journals New Clause in Bank Credit Agreement in Relation to Consumer Protection Act (Study on PT. Bank Negara Indonesia, Tbk. Denpasar Branch)

2021 ◽  
Vol 8 (1) ◽  
pp. 30-36
Author(s):  
Komang Yustika Dewi Suryaningsih ◽  
A.A.A. Ngr. Tini Rusmini Gorda
Keyword(s):  
Consumer Protection ◽  
Standard Form ◽  
Problem Formulation ◽  
Legal Issue ◽  
Consumer Protection Act ◽  
Legal Consequence ◽  
Protection Theory ◽  
Credit Agreement ◽  
Balancing Principle ◽  
Credit Contract

Credit agreement in standard form which is being made unilaterally by the bank until present is still becoming a special legal issue in agreement field of civil law. In addition, viewed from the side of the agreement it is also against consumer protection law as set in Consumer Protection Act. Problem formulation of is divided into namely regarding the existence of standard clause in bank agreement if associated with Article 18 of Consumer Protection Act and legal consequence of standard clause in credit agreement associated with consumer protection. This study aims to identify the presence of standard clause in banking agreement if related with Article 18 of Consumer Protection Act and legal consequence to the standard clause in credit contract is associated with consumer protection.  The research is a juridical empirical. The location is on PT. Bank Negara Indonesia in Denpasar city. The author is guided by laws and regulations related with public fact, that is first problem formulation is analyzed from balancing principle and next the second problem formulation is from consumer protection theory. The result shows that the implementation of the provision tends to protect the bank as businesses. Moreover, the legal consequence of Bank BNI’s credit contract which does not meet the provision will result in null and void.

scholarly journals CONSTRUCTION CONTRACT OF HIRE PURCHASE AND CORRELATION WITH CRIMINAL OFFENSE

2019 ◽  
Vol 3 (1) ◽  
pp. 35
Author(s):  
Bambang Tri Bawono
Keyword(s):  
Consumer Protection ◽  
Court Decision ◽  
Legal Certainty ◽  
Criminal Offense ◽  
Consumer Protection Act ◽  
Criminal Offenses ◽  
Construction Law ◽  
The Right ◽  
Legal Consequences ◽  
Lease Agreement

Hire purchase agreements that have developed in the realm of society yet have clarity because there is no specific legislation governing the lease-sale agreement. The absence of specific legislation governing the lease resulted in the agreement to experience different views for legal experts both in terms of the definition and the legal consequences arising. This type of research used in this study is a research library with normative juridical approach. Normative research. The results of this study mention: first, the legal construction of a hire purchase agreement did not have legal certainty, because this agreement has legal consequences of changing from the payment of the debt to the payment of rent, when a tort committed by the purchaser. Other than that, construction law hire purchase agreement is null and void, because there are some clauses which are contrary to Article 1266 of the Civil Code and Article 18 of the Consumer Protection Act. Second, the criminal offenses arising from a lease agreement is a criminal offense of extortion, when the withdrawal unilaterally, although financing the vehicle has been registered in the Register of Fiduciary. This is because even though the fiduciary has the right of executor, but the execution must follow procedures for the implementation of a court decision, so businesses must apply in advance to the Chairman of the Court.

scholarly journals EXEMPTION PROVISIONS AND THE CONSUMER PROTECTION ACT, 2008: SOME PRELIMINARY COMMENTS

Obiter ◽  
2014 ◽  
Author(s):  
Mark Tait ◽  
Stephen Newman
Keyword(s):  
Consumer Protection ◽  
Standard Form ◽  
Tourism Industry ◽  
Negative Consequences ◽  
Shopping Malls ◽  
Tourist Attractions ◽  
Consumer Law ◽  
Consumer Protection Act ◽  
Parking Garages ◽  
The Impact

Suppliers have found it most convenient to reduce their risk of liability by inserting a provision in their contracts with consumers – be it in a written and signed contract or in the form of a displayed notice – in terms of which suppliers are exempted from liabilities they would otherwise be obliged to accept. Exemption of liability provisions are often contained in standard-form contracts but also in notices displayed at public venues such as hotels, restaurants, shopping malls, parking garages, entertainment complexes, tourist attractions and even petrol-service stations. The same may probably be said of a host of other suppliers, including suppliers of tourism services. It is not surprising, therefore, that a significant factor in the development of consumer law in general can be “ascribed to legislative responses to business disclaimers of accountability for negative consequences attendant upon their dealings with consumers”.The Consumer Protection Act 68 of 2008 (CPA) introduced a number of provisions which impact on the use by suppliers of provisions that aim to exclude the liability of suppliers for harm to consumers caused through the negligence of the supplier. The CPA defines a supplier in section 1 as: “a person who markets any goods or services”. To market is defined as: “to promote or supply any goods or services”.This note seeks to provide a conceptual framework for the understanding and application of relevant provisions of the CPA to exemption provisions. The impact is considered within the context of the tourism industry in order to illustrate some of the practical consequences of the CPA on the use of exemption provisions. The note does not seek to question whether exemption provisions are contrary to public policy per se.

scholarly journals New Clause in Bank Credit Agreement in Relation to Consumer Protection Act

2021 ◽  
Vol 6 (1) ◽  
pp. 1-7
Author(s):  
Yustika Dewi ◽  
Ngr. Tini Rusmini Gorda
Keyword(s):  
Consumer Protection ◽  
Standard Form ◽  
Problem Formulation ◽  
Bank Credit ◽  
Legal Issue ◽  
Standard Contract ◽  
Consumer Protection Act ◽  
Protection Theory ◽  
The Interest Rate ◽  
Credit Agreement

The importance of banking institutions’ existence in one side provide very high risk for banks and in the other side provide profit for public as fund user’s clients.  Standard contract circulating in public seen from viewpoint of many parties is still detrimental with clauses presence in the contract. The content of standard contract in general is biased because it tends to benefit the contract maker. The standard contract if seen from the legal side is still being debated in terms of principles and validity requirement of an agreement. The inclusion of this clause shows the strength of creditor’s position which actually already strong despite without the inclusion of this clause. In banking practice, it is found in credit granting by bank the inclusion of unilateral terms which states that “the bank at any time is allowed to change the interest rate beforehand” in the contract that has been standardized previously by the bank. Credit agreement in standard form which is being made unilaterally by the bank until present is still becoming a special legal issue in agreement field of civil law. In addition, viewed from the side of the agreement it is also against consumer protection law as set in Consumer Protection Act. Problem formulation of this thesis is divided into namely regarding the existence of standard clause in bank agreement if associated with Article 18 of Consumer Protection Act and legal consequence of standard clause in credit agreement associated with consumer protection. The research in this thesis is Juridical empirical. The author is guided by laws and regulations related with public fact, that is first problem formulation is analyzed from balancing principle and next the second problem formulation is from consumer protection theory.  

scholarly journals Philosophical Study of Interference in Setting the Legal Protection of Bank Customers in Indonesia

2015 ◽  
Vol 3 (2) ◽  
pp. 60-66
Author(s):  
Theresia Anita Christiani
Keyword(s):  
Rule Of Law ◽  
Consumer Protection ◽  
Legal Protection ◽  
Customer Relationship ◽  
Philosophical Study ◽  
Market Mechanisms ◽  
Relationship Type ◽  
The Rule Of Law ◽  
Freedom Of Contract ◽  
Consumer Protection Act

Objective - The objectives of this research are, first, to analyze state interventionism in the protection of bank customers in Indonesia, and, second, to determine and analyzed the form of state interventionism in the regulation of banks with regard to the protection of customers. Methodology/Technique - This research is partly normative in nature; it assesses the intervention of bank in the protection of customers who usually are the weaker party in the bank-customer relationship. The research further reveals that state interventionism is required to ensure the protection of customers against the excesses of market mechanisms. Both forms of state interventionism are necessary in order to protect and enhance the rule of law. Findings - In particular, this paper discusses the validity of standard clauses set forth in the Consumer Protection Act. Novelty - The paper concludes that the principle of freedom of contract can only be realized and meaningfully implemented if customers and banks are treated as equal partners in the customer-bank relationship. Type of Paper - Conceptual Keywords: Legal Protection; Law; Banking; Philosophical; Customer-Bank.

scholarly journals Consumer Protection in the Banking Credit Agreement in Accordance with the Principle of Proportionality under Indonesian Laws

FIAT JUSTISIA ◽  
2020 ◽  
Vol 14 (4) ◽  
pp. 337
Author(s):  
Dwi Ratna Indri Hapsari ◽  
Kukuh Dwi Kurniawan
Keyword(s):  
Consumer Protection ◽  
Financial Services ◽  
Civil Code ◽  
Freedom Of Contract ◽  
Standard Contract ◽  
Consumer Protection Act ◽  
The Law ◽  
Principle Of Proportionality ◽  
Credit Agreement ◽  
Banking Credit

The implementation of the principle of freedom of contract gives rise to the types of agreements not regulated in the law or The Indonesian Civil Code (ICC). We are familiar with the term Standard contract or standard agreement. Standard agreements are often used in the banking world, one of which is in banking credit agreements, as we all understand that the position of the customer is weaker than the bank, so it must be protected by law. In order to protect these interests, the customer is given protection contained in the Banking Act regulations as well as the Consumer Protection Act and its derivative regulations. Specifically, the credit agreement format as the standard agreement set out in Financial Services Authority Circular Number 13 / SEOJK.07 / 2014 Concerning Standard Agreements is that credit agreements that contain rights, obligations and requirements that are legally binding on customers, are required to use letters, writing, symbols, diagrams, signs, terms, readable phrases, and / or sentences simple ones in Indonesian that are easily understood by customers. This is in an effort to provide protection to customers and the regulatory and supervisory functions of the Financial Services Authority.

scholarly journals New Clause in Bank Credit Agreement in Relation to Consumer Protection Act (Study on PT. Bank Negara Indonesia, Tbk. Denpasar Branch)

2021 ◽  
Vol 8 (1) ◽  
pp. 30-36
Author(s):  
Komang Yustika Dewi Suryaningsih ◽  
A.A.A. Ngr. Tini Rusmini Gorda
Keyword(s):  
Consumer Protection ◽  
Standard Form ◽  
Problem Formulation ◽  
Legal Issue ◽  
Consumer Protection Act ◽  
Legal Consequence ◽  
Protection Theory ◽  
Credit Agreement ◽  
Balancing Principle ◽  
Credit Contract

Credit agreement in standard form which is being made unilaterally by the bank until present is still becoming a special legal issue in agreement field of civil law. In addition, viewed from the side of the agreement it is also against consumer protection law as set in Consumer Protection Act. Problem formulation of is divided into namely regarding the existence of standard clause in bank agreement if associated with Article 18 of Consumer Protection Act and legal consequence of standard clause in credit agreement associated with consumer protection. This study aims to identify the presence of standard clause in banking agreement if related with Article 18 of Consumer Protection Act and legal consequence to the standard clause in credit contract is associated with consumer protection.  The research is a juridical empirical. The location is on PT. Bank Negara Indonesia in Denpasar city. The author is guided by laws and regulations related with public fact, that is first problem formulation is analyzed from balancing principle and next the second problem formulation is from consumer protection theory. The result shows that the implementation of the provision tends to protect the bank as businesses. Moreover, the legal consequence of Bank BNI’s credit contract which does not meet the provision will result in null and void.

scholarly journals Parol evidence and the Consumer Protection Act 68 of 2008

2021 ◽  
Vol 24 ◽  
pp. 1-27
Author(s):  
Marianne Lombard
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Standard Form ◽  
Consumer Protection Act ◽  
The United Kingdom ◽  
Consumer Rights ◽  
Bargaining Position ◽  
Protection Legislation ◽  
Strict Enforcement ◽  
The Individual

The conflict between the objectives of the Consumer Protection Act 68 of 2008 – to protect consumers and ensure accessible and transparent redress – and the purpose of the parol evidence rule – to exclude extrinsic evidence and observe the maxim pact servanda sunt ‒ is evident and forms the basis of this article. The purpose of consumer protection legislation is to balance the rights of consumers and suppliers, to protect the interests of consumers and to ensure efficient redress for consumers who have been wronged. The parol evidence rule, which is still in effect in South Africa, prohibits extrinsic evidence in a dispute to interpret a written agreement between parties to ensure certainty on the terms and conditions agreed to in writing. In practice, the parol evidence rule can disadvantage consumers who enter into standard-form contracts, as they normally are in an inferior bargaining position and cannot negotiate the individual terms and conditions of consumer agreements. It is obvious that the strict enforcement of the parol evidence rule in consumer agreements could lead to unjust results in consumer disputes. The provisions of the Consumer Protection Act 68 of 2008 are discussed to establish the extent of the limitation of the parol evidence rule therein. Then, the Consumer Rights Act, 2015 in the United Kingdom is considered to establish the tendency to limit the application of the rule in foreign consumer legislation, and to compare that to the position in South Africa. This article discusses whether the restriction or limitation of the parol evidence rule in the Consumer Protection Act is efficient in reaching the aims and objectives of the Act.  

Difficulties of the Financial Reform in the USA

2013 ◽  
pp. 147-158
Author(s):  
V. Kulakova
Keyword(s):  
Economic Policy ◽  
Consumer Protection ◽  
Financial Regulation ◽  
Financial Reform ◽  
Wall Street ◽  
Political Sciences ◽  
Consumer Protection Act ◽  
The Usa ◽  
Major Factors ◽  
International Financial Regulation

We study the reform of financial regulation initiated by the Dodd—Frank Wall Street Reform and Consumer Protection Act of 2010. Major factors impeding Obama’s financial and economic policy are explored, including institutional difficulties, party warfare, lobbyism, and systemic inconsistencies of international financial regulation. We also examine challenges that are being faced by economic and political sciences due to the changes in financial regulation and also assess the level of radicality of the financial reform.

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