WITH the Christmas season fast approaching, consumers can be counted on to flock local retail stores to conduct their customary Christmas shopping, be it for the purposes of gift-giving, home improvement and decorating, or food preparation. Like the upstream return of Atlantic and Pacific salmon to their river of birth to spawn, or the Southern migration of birds during the winter, this shopping craze has become a seemingly engrained cultural ritual in today’s Western societies. However, after this impulse has waned, many consumers may want to return a purchased item and obtain a refund of the purchase price, either out of necessity or sheer regret, only to be rebuffed by a disdainful sales representative, who merely points to that all-too-familiar sign, which reads: “All sales final. No refund. No exchanges.”

Who then is right in such an instance? In typical legal fashion, the answer is that it depends; it depends on the item purchased, when it was purchased, how it was purchased and most importantly, why it is being returned. It is therefore important for consumers, and merchants alike, to be aware of our local consumer protection laws, which govern the circumstances in which a consumer may claim a refund.

From the outset, consumers may be disappointed to learn that there is no general right to a refund. In fact, our Consumer Protection Act (“CPA”) states that: “A consumer who acquires a good that in every way is similar or identical to the one requested or described and declared by the provider shall not be entitled to a refund if, having left the place from which the provider sold the good, the consumer for any reason decides that he no longer wants it.” This, however, only applies to face-to-face sales transactions that occur at the point of sale or service.

Transactions that occur online are governed by the Electronic Transactions Act (“ETA”), which offers more generous rights. This includes a right to the consumer to cancel, without giving any reason and without incurring any charge or penalty, any transaction for the supply of goods, within seven days after the receipt of the goods, or if for services, within seven days after the date on which the agreement was made. This, however, excludes situations where the goods in question are, among other things, (i) made to the consumer’s specifications; (ii) clearly personalised; (iii) by reason of their nature cannot be returned; or (iv) are likely to deteriorate or expire rapidly. The ETA provisions apply to both Jamaican and overseas suppliers, once the goods or services are being offered for sale to a person in Jamaica. Considering that Jamaican businesses are increasingly providing online platforms for conducting commerce and that Jamaican consumers are shopping online with increasing frequency, the ETA provisions are likely to

grow in relevance.

Most local sales transactions, however, still occur via traditional face-to-face means. In such instances, consumers can only claim a refund at law, where the goods are defective or materially different from the description provided by the merchant. However, the refund may only be claimed (at law) where the returned goods are in the same condition in which they were purchased, or with minimal damage due to “reasonable exposure”. Additionally, if the purchased item is an electrical good and the consumer discovers that it is faulty or non-functional, then the consumer may be entitled to a free exchange for a functional replacement or to a refund, if the merchant is unable to establish that the item was in fact damaged directly by the consumer. It is therefore good practice to test all electrical items in the presence of the consumer at the time of purchase and for this to be confirmed in writing.

Where defective goods are concerned, a common excuse given by merchants for refusing to grant a refund or exchange is that the item was not under warranty. It is thus good to know that these rights exist notwithstanding that there was no explicit warranty provided by the merchant. Further, where there are no explicit warranties, whether by the merchant or manufacturer, the CPA grants consumers an implied warranty of six months on parts and labour. In some circumstances, if a merchant would like to put a consumer on notice that there may be some deficiency in the goods, the merchant may use clear language such as “sold as is” or where significant discounts are offered on items marked as being on “clearance”. Arguably, in such cases, the merchants have made negative representations as to the quality or the fitness of the goods, and consequently, “buyer beware” rules may apply. These rules, however, exist at common law, and may therefore be trumped by the statutory protections afforded to consumers, depending

on the circumstances of

each case.

It is also important to note that the preceding merely represents the minimum protection afforded to consumers at law. Merchants are free to allow their customers more generous rights to refunds or exchanges. A merchant must, however, exercise caution not to fall below the minimum standards provided at law, as for example, a merchant who fails to offer a refund due to a consumer commits an offence under the CPA and may be liable to a fine on summary conviction before a Resident Magistrate.

René Gayle is an associate at Myers, Fletcher & Gordon and is a member of the firm’s Commercial Department. René may be contacted via rene.gayle@mfg.com.jm or you can visit the firm’s website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.