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the knowledge and understanding of the consumer in relation to the meaning of the terms of the contract or their effect;

the bargaining strength of the parties to the contract relative to each other;

reasonable standards of fair dealing;

whether or not, prior to or at the time of entering into the contract, the terms of the contract were subject to negotiation or were part of a standard form contract;

whether or not it was reasonably practicable for the consumer to negotiate for the alteration of the contract or a term of the contract or to reject the contract or a term of the contract;

whether expressions contained in the contract are in fine print or are difficult to read or understand;

whether or not, even if the consumer had the competency to enter into the contract based on his or her capacity and soundness of mind, the consumer—

was not reasonably able to protect his or her own interests or of those whom he or she represented at the time the contract was entered; or

whether or not independent legal or other expert advice was obtained by the consumer who entered into the contract;

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the extent, if any, to which the provisions of the contract or a term of the contract or its legal or practical effect was accurately explained by any person to the consumer who entered into the contract;

the conduct of the parties who entered into the contract in relation to similar contracts or courses of dealing between them; and

whether the consumer relied on the skill, care or advice of the supplier or a person connected with the supplier in entering into the contract.

General substantive unfairness 24d.  (1)  A contract or a term of a contract is substantively unfair if the contract or the term of the contract—

is in itself harsh;

is oppressive;

is unconscionable;

excludes or restricts liability for negligence; or

excludes or restricts liability for breach of express or implied terms of the contract without adequate justification.

whether or not the contract or a term of the contract imposes conditions—

which are unreasonably difficult to comply with;

or

whether the contract is oral or wholly or partly in writing;

whether the contract is in standard form;

whether the contract or a term of the contract is contrary to reasonable standards of fair dealing;

whether the contract or a term of the contract has resulted in a substantially unequal exchange of monetary values or in a substantive imbalance between the parties;

whether the benefits to be received by the consumer who entered into the contract are manifestly disproportionate or inappropriate, to his or her circumstances;

whether the consumer who entered into the contract was in a fiduciary relationship with the supplier; and

whether the contract or a term of the contract—

requires manifestly excessive security for the performance of contractual obligations;

entitles the supplier to modify the terms of the contract unilaterally.

Burden of proof 24e.  If a contract or a term of a contract excludes or restricts liability, or excludes rights, duties and liabilities, it is for the supplier relying on such exclusion or restriction to prove that it is not without adequate justification.

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Power to raise an issue of unfairness 24f.  A court or the Tribunal may, in proceedings before it, raise an issue as to whether a contract or its terms are unfair under sections 24c and 24d, even if none of the parties has raised the issue in its pleadings.

Effect of unfair terms 24g.  (1)  In this Part, where a court or the Tribunal comes to the conclusion, having regard to sections 24c and 24d that a contract or a term of a contract is either procedurally or substantively unfair or both, the court or the Tribunal may declare the contract or the term of the contract as unenforceable or void and the court may grant judgment, and the Tribunal may make an award as provided for under section 112 of this Act.

whether and to what extent restitution is possible in the facts and circumstances of the case; and

where such restitution is not possible, either wholly or partly, whether any compensation is payable.

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Contravention of Part IIIa to be an offence 24i.  (1)  Any person who contravenes any of the provisions of this Part commits an offence and shall on conviction be liable—

if such person is a body corporate, to a fine not exceeding two hundred and fifty thousand ringgit, and for a second or subsequent offence, to a fine not exceeding five hundred thousand ringgit;

if such person is not a body corporate, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years, or to both, and for a second or subsequent offence, to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding six years, or to both.

a credit facility is provided by the credit facility provider to the purchaser in a credit sale transaction of such goods; and

the credit payment for the purchased goods is made by the purchaser to the credit sale provider by instalments;

“credit sale transaction” means a credit transaction between a credit facility provider and a purchaser for the payment of purchased goods by way of instalments;

“dealer” means a person, other than the employee of a credit facility provider, who negotiates on behalf of the credit facility provider for the purposes of making a credit sale agreement;

“goods” means any goods or class of goods prescribed by the

Minister under section 24m;

“seller” means any person who sells goods to any purchaser through a credit sale transaction;

“statutory rebate” means—

a rebate on the outstanding terms charges calculated according to the prescribed formula; or

a rebate on the amount of premium paid in respect of the insurance of goods,

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granted upon early settlement of the payment of the total outstanding amount payable under a credit sale agreement;

“terms charges” means an interest calculated at a rate per annum on the initial amount financed by a credit facility provider in a credit sale agreement;

“total outstanding amount payable” means the total amount payable by a purchaser under a credit sale agreement and the amount derived from the terms charges on overdue instalments which has yet to be paid less—

the total amount of the instalments paid by or on behalf of the purchaser, excluding deposit; and

statutory rebate, if any.

Power of Minister to prescribe goods 24m.  For the purpose of this Part, a credit sale agreement may only be made in respect of any goods or class of goods as prescribed by the Minister.

Preconditions of credit sale agreement 24n.  (1)  Before any credit sale agreement is entered into in respect of any goods or class of goods, a seller or credit facility provider, or any person acting on behalf of the seller or credit facility provider, or a dealer, who carries out negotiations leading to the making of the credit sale agreement shall serve on the prospective purchaser a prescribed written statement relating to the summary of financial obligation of the prospective purchaser duly completed and signed by the seller, the credit facility provider, the person acting on behalf of the seller or the credit facility provider, or the dealer, as the case may be.

by the prospective purchaser to the seller or the person acting on behalf of the seller or the credit sale provider, or the dealer, referred to in subsection (1), the seller,

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person or dealer shall take such steps to obtain the consent of the credit facility provider to provide the credit facility to the prospective purchaser and the credit facility provider may give its consent; or

by the prospective purchaser to the credit facility provider referred to in subsection (1), the credit facility provider may give its consent to provide the credit facility to the prospective purchaser.

the consent of the credit facility provider to provide the credit facility is not given under subsection (2); or

the prospective purchaser elects not to enter into the credit sale agreement.

imposes an obligation on a prospective purchaser to enter into any credit sale agreement after the written statement referred to in subsection (1) or (5) has been served on the prospective purchaser; or

requires a prospective purchaser to make any payment or to provide other consideration in respect of the preparation or service of the written statement referred to in subsection (1) or (5), notwithstanding that the credit sale agreement is void, commits an offence.

shall contain the following information:

the date on which the credit sale agreement comes into force;

the description of any part of consideration which is provided or is to be provided otherwise than in cash;

shall contain the following information in a tabular form:

the cash price, that is the price at which the purchaser might have paid for the goods, if he purchased the goods in cash, at the time of signing of the credit sale agreement;

any amount payable for insurance in respect of the goods or any of the goods, if any;

, (iii), (iv) and (v) less the deposit referred to in subparagraph (ii), if any;

the total amount payable which shall consist of—

the amount referred to in subparagraphs

the amount referred to in subparagraphs

, (iii), (iv), (v) and (vii); and

shall not contain any information which differs in any material way from the information specified in paragraphs (1)(a) and (b).

is entitled to choose whether the agreement is to be made in the national language or the English language before the agreement is signed;

is entitled to an implied guarantee that he shall have and enjoy quiet possession of the goods; and

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is entitled to an implied guarantee that the goods shall be free from any charge or encumbrance.

furnish the monthly amount of instalment payable to the credit facility provider on the agreed date of payment of each instalment;

cause the purchased goods to be insured in his name during the period of the agreement, where applicable;

and

upon a request by a credit facility provider under paragraph 24s(1)(a), inform the credit facility provider in writing where the goods are kept or used, or if the goods are not in his possession, to whom he has delivered the goods or the circumstances under which he has lost possession of the goods.

Rights and obligations of credit facility provider 24s.  (1)  In relation to a credit sale agreement, a credit facility provider is entitled to—

request, by notice in writing, the purchaser to state in writing where the goods are kept or used, or if the goods are not in the purchaser’s possession, to whom the purchaser has delivered the goods or the circumstances under which the purchaser has lost possession of the goods;

cause the goods to be insured in the name of the purchaser against any risks that the credit facility provider thinks fit, if any, for the period of the credit sale agreement;

and

collect any booking fee or deposit from the purchaser in respect of any purchased goods, where applicable.

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serve a copy of the credit sale agreement to the purchaser within twenty-one days after the making of the credit sale agreement;

give a receipt to the purchaser in respect of each payment of instalment made;

subject to subsection (3), at any time before the final payment of instalment is made under the credit sale agreement, and within twenty-one days after the credit facility provider has received a request in writing from the purchaser, supply to the purchaser a statement signed by the credit facility provider showing—

the total amount paid to the credit facility provider by or on behalf of the purchaser;

issue an authority card to any person acting on behalf of the credit facility provider for the purposes of collecting or receiving the payment of instalments or any outstanding amount under the credit sale agreement, or collecting or receiving goods surrendered by the purchaser under section 24w; and

where the dealer or person acting on behalf of the credit facility provider for the purposes of collecting or receiving the payment of instalments or any outstanding amount under the credit sale agreement, or collecting or receiving goods surrendered by the purchaser, has ceased to be such dealer or person, inform the purchaser in writing of such cessation and that no payment of instalments or surrender of goods shall be made to such dealer or person.

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to treat the agreement as void; or

to have the excess amount reduced from the total amount of the terms charges payable by him under the agreement.

the agreement shall be void;

the credit facility provider shall refund to the purchaser any amount paid out of the total amount payable or other consideration provided by or on behalf of the purchaser under the agreement; and

the purchaser shall surrender the purchased goods to the credit facility provider.

pay the overdue instalments and the late payment charges to the credit facility provider;

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make an early settlement of the credit sale agreement by paying the total amount payable under the agreement to the credit facility provider; or

terminate the credit sale agreement and surrender the purchased goods to the credit facility provider in accordance with section 24w.

if such person is a body corporate, to a fine not exceeding two hundred and fifty thousand ringgit, and for a second or subsequent offence, to a fine not exceeding five hundred thousand ringgit; or

if such person is not a body corporate, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years, or to both, and for a second or subsequent offence, to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding six years, or to both.

the procedure relating to the making and execution of credit sale agreements including the conduct of the parties prior to and after the making of the agreement;

and

the formula and the rate for terms charges, period of instalments, statutory rebates, late payment charges, booking fees and ancillary charges.

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