One cannot help but conclude that the Unfair Terms in Consumer Contracts Bill, 2003 (the “Bill”) is a mistake.
The Bill was introduced into Parliament by Leslie Miller, the Minister of Trade and Industry, and Allyson Maynard-Gibson, the Financial Services and Investment Minister. When you read the newspaper accounts and the text of the bill several issues are clear.
Mr. Miller states, as reported in the Tribune, that one reason for the Bill is that “Consumers are continuously taken advantage of, especially the country’s single women”. This statement in itself seems strange since Bahamian women on average are better educated and more highly motivated in legitimate business than Bahamian men. In fact, this gender disparity is a social problem of significant magnitude.
Without the provision of additional factual data, the “protection of women” reason for the Bill appears patronizing and political.
Then there is the implied assumption that contract law as developed over several centuries is unfair to consumers. The Ministers contend that it is necessary to protect the consumer against “unfair terms” that are contrary to the “good faith” test. This is defined as a term that “causes a significant imbalance in the parties’ rights and obligations…to the detriment of the consumer” (Clause 4). The guidelines for determining “Good Faith” include “the strength of the bargaining positions of the parties” and “the extent to which the seller or supplier has dealt fairly and equitably with the consumer” (Second Schedule (a) & (d)). And…when there is any doubt about a written term in a contract “the interpretation most favourable to the consumer shall prevail” (Clause 6).
The right assumption is that the proposed Good Faith test is a blatant effort to alter the present impartiality of the Law.
The third reason for the Bill given by the Minister of Trade and Industry is that the court system has failed. Leslie Miller states that “The normal recourse is to go to court. The normal result is nothing is done.” The Minister recognizes that the court system could solve the problem; but his solution is not to undertake the difficult task of fixing the court system. He and the PLP are confirming their inability or unwillingness to address this pressing national problem.
And…how bad is it?
Paul Farquharson, the Police Commissioner, in an interview on Talk Radio and as reported in the Nassau Guardian, stated that —