Reforming unfair terms in consumer contracts: a new challenge / Faidur Rahman Abdul Hadi ... [et al.]

The inspiration for this topic traces its origins back to research done by one of us involved in the law faculty's first ever mooting competition back in 2006. At the time one of the issues the moot problem was concerned with was the applicability of exclusion clauses in limiting and mitigating liability of a party privy to a contract for any breach suffered. Upon investigation, it was found
that exclusion clauses was a common practice by businesses to limit the extent of their responsibility towards the consumer by incorporating clauses to the effect in standard form contracts drawn up on behalf of the businesses. These contracts would then operate in a way
detrimental to the consumer by ousting normally applicable common law rights regarding the merchantability of goods. This situation, although inexpedient, has come to be tolerated because of the unequal bargaining positions of both the business and the consumer, with the business indubitably being placed on the higher pedestal. As Visu Sinnadurai reports in his book, Law of Contract the only extent to which the law in Malaysia controls this practices is via the positions of the courts in local common law, and this includes such a clause having to satisfy generally only three requirements, namely adequacy and contemporaneousness of notice, clarity of
provision and interpretation in the consumer's favor in such an absence of clarity. This is similar to the position in England on the same subject prior to 1977.