And the law won`t necessarily save you from a bad deal. Sometimes, however, a good deal isn`t just bad – it`s downright unscrupulous. And in these cases, the person at the wrong end of the agreement may be able to find a remedy in the law. One might think that the reason for the comparative inefficiency of the UCO is that it differs in content from the UTCCR. However, that would not be correct. Even if Hong Kong courts do adopt a “totality approach” (making it difficult to make a single term unfair and unenforceable), this is no different from the situation under the UTCCR, where Regulation 6(1) requires UK courts to change the fairness of a contract term by referring to “all circumstances that form part of the conclusion of the contract and all other terms. of the contract”, to be evaluated. In any event, given the widespread practice of incorporating unfair terms into standard consumer contracts, it is argued that the UCO, as the only local legislation designed to cover such terms (with the exception of opt-out clauses and indemnification terms), is woefully inadequate and ineffective. Therefore, an urgent reform of the current regime for the protection of consumers against unfair terms in model contracts is needed to curb the exploitation of consumers in Hong Kong and to correct the imbalance of bargaining power between consumers and businesses. Indeed, it is crucial that Hong Kong, as an advanced economy and respected Asian shopping mall, is not lagging behind in any aspect of the consumer protection law, but is a prominent example, at least for the rest of China. Similarly, the conscientiousness of conduct in Australia is regulated by law in the form of the Australian Consumer Code (the “ACL”), which is set out in Schedule 2 of the Competition and Consumer Act 2010.
Similar to the UCO, the ACL does not precisely define the scope of “unscrupulous” behavior and prefers that it be determined on a case-by-case basis. These are decided in accordance with the factors of Article 22 of the LCA, which are no different from those of Article 6 of the UCO. Australian courts, like their counterparts in Hong Kong, will also consider any other factors they deem relevant. In addition, the UCO does not provide a definition of the concept of “unscrupulous”. In the past, there have been comments about the lack of adequate protection of the UCO to provide adequate protection to consumers. This is due to the Court`s tendency to take into account “all the circumstances”. This meant that a contract could be considered conscientious as long as the manner in which the contract was concluded was procedural. Consequently, a single unfair term in itself cannot result in an entire contract being unscrupulous and therefore unenforceable in the eyes of the UCO. The UCO only applies to contracts for the sale of goods or the provision of services in which one of the contracting parties is a consumer. The aggrieved party may initiate proceedings and obtain the consent of the court that the contract (or parts thereof) is indeed unscrupulous (and therefore unenforceable). In accordance with Article 6 of the UCO, which lists a number of factors to be taken into account, such as: The written terms of consumer contracts are rarely, if ever, negotiated individually between a commercial entity (a supplier of goods or services) and the consumer. On the contrary, apart from the conditions relating to price and object, the terms of the contract are almost always fixed in standard form on the basis of “take it or leave it”.
As a result, the terms are often one-sided, in favor of the supplier, and often written in fine print or legal language that is difficult for consumers to understand. In order to avoid certain liabilities or to exploit customers, some sellers or service providers may include exemption conditions in their contracts or impose unfair terms. The law attempts to prevent merchants from shirking their responsibility to customers if they are injured or if their property is lost or damaged because these dealers have not shown proper care. Traders can`t hide behind cleverly worded clauses or a few lines of fine print in a contract. You can still be held liable for damages. Given these reasons for the sheer inefficiency of the UCO and thus the absence of a consumer protection regime in Hong Kong with regard to unfair terms in standard consumer contracts, there seems to be an urgent need for reform. In 2008, the Consumer Council noted that the consumer protection framework for the adoption of unfair terms in model contracts “is below the standards of comparable advanced economies; and should therefore be addressed.” When deciding whether the contract or part of it is unscrupulous, the court will consider the following points under Article 6 of the Unscrupulous Contracts Regulations: Although the UTCCR refers to terms that are “unfair”, unlike the UCO, which refers to “unscrupulous” terms, there is no substantial distinction between these terms, since the guides defining these two adjectives (in the two respective parts of legislation B.) have identical content […].