THE LAWS OF BARBADOS Printed by the Government Printer, Bay Street, St. Michael
by the authority of the Government of Barbados
1 L.R.O. 2002 Consumer Protection CAP. 326D
CHAPTER 326D
CONSUMERPROTECTION
ARRANGEMENTOFSECTIONS
SECTION
PART I
PRELIMINARY
1. Short title.
2. Interpretation generally.
PART II
UNFAIRCONTRACTTERMS
3. Interpretation of this Part.
4. Terms that have not been individually negotiated.
5. Burden of proof.
6. Written terms to be plain and intelligible.
7. Unfair terms.
8. Assessment of unfairness.
9. Effect of unfair term.
10. Proper law.
11. Application of this Part.
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SECTION
PART III
UNFAIRTRADEPRACTICES
12. Misleading or deceptive conduct.
13. False representations.
14. Offering gifts and prizes.
15. Misleading conduct in relation to goods.
16. Misleading conduct in relation to services.
17. Full cost to be stated in certain cases.
18. Dual pricing.
19. Bait advertising.
20. Referral selling.
21. Falsely accepting payment.
22. Misleading statements.
23. Pyramid selling.
24. Assertion of right to payment prohibited in certain cases.
25. Liability of recipient of unsolicited goods.
26. Contravention of this Part.
PART IV
CONTROLOFDISTANCESELLING
27. Distance selling regulations.
THE LAWS OF BARBADOS Printed by the Government Printer, Bay Street, St. Michael
by the authority of the Government of Barbados
3 L.R.O. 2002 Consumer Protection CAP. 326D
SECTION
PARTV
PRODUCTLIABILITY
28. Interpretation of this Part.
29. Liability for defects.
30. Defect inferred.
31. Damage giving rise to liability.
32. Application of certain enactments.
33. Prohibition on exclusions from liability.
34. Defences in civil proceedings.
35. Application to Crown.
PARTVI
CONSUMERSAFETY
36. Interpretation of this Part.
37. General safety requirement.
38. Safety regulations.
39. Contravention of safety regulations.
PARTVII
RECALLOFGOODS
40. Compulsory recall of goods.
41. Compliance with goods recall notice.
42. Loss or damage caused by contravention of goods recall notice.
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SECTION
43. Conference to be held in certain cases.
44. Action after conclusion of conference.
45. Exception in case of danger to public.
46. Power to obtain information, documents and evidence.
47. Voluntary recall.
48. Suppliers to be given notice in certain cases.
49. Certain action not to affect insurance contracts.
PARTVIII
INDUSTRYCODES
50. Interpretation of this Part.
51. Contravention of industry codes.
52. Regulations relating to industry codes.
53. Binding force of industry codes.
PART IX
ADMINISTRATIONANDENFORCEMENT
54. Fair Trading Commission to administer and enforce thisAct.
55. Power of Commission to issue prohibition notices and warning notices.
56. Power of Commission to obtain information.
57. Power of Commission to accept and enforce undertakings.
58. Injunctions.
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5 L.R.O. 2002 Consumer Protection CAP. 326D
SECTION
59. Orders to disclose information etc.
60. Other orders.
PARTX
MISCELLANEOUS
61. Regulations generally.
62. Offences.
63. Bodies corporate.
SCHEDULE
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THE LAWS OF BARBADOS Printed by the Government Printer, Bay Street, St. Michael
by the authority of the Government of Barbados
7 L.R.O. 2002 Consumer Protection CAP. 326D
CHAPTER 326D
CONSUMERPROTECTION
An Act to make new provision for the protection and safety of consumers, and for connected purposes.
[16th January, 2003]
PARTI
PRELIMINARY
1. ThisAct may be cited as theConsumer Protection Act.
2. (1) In thisAct, except so far as the context requires otherwise,
"business" includes a tradeor profession and the activities of aprofessional or trade association or of a public authority;
"commencement date" means the date on which this Act comes into operation;
"theCommission"means theFairTradingCommissionestablishedby section 3 of the Fair Trading Commission Act;
"consumer"meansan individualwho
(a) acquires froma supplier goods or services of a kind ordinarily intended for private use or consumption;
(b) does not acquire the goods or services for the purpose of
(i) supplying them in trade or commerce; or
(ii) consuming them in the course of a process of productionormanufacture; and
Short title.
Interpreta- tion generally.
ss.1-2
2002-20.
Commence- ment. 2003/1.
Cap. 326B.
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(c) in the case of goods, does not acquire them for the purpose of repairing or treating in trade or commerce other goods or fixtureson land;
"consumer goods"means goodswhich are ordinarily intended for private use or consumption;
"distance selling regulations"means regulationsunder section27;
"goods" includes substances, growing crops and things comprised in land by virtue of being attached to land, and any ship, aircraft or vehicle;
"theMinister"means theMinister responsible forConsumerAffairs;
"personal injury" includesanydiseaseandanyother impairmentofaperson's physical ormental condition;
"regulations"means regulationsmadeunder thisAct;
"safety regulations"means regulationsunder section38;
"services" is to be construed in accordancewith subsection (3);
"substance" means any natural or artificial substance, whether in solid, liquid or gaseous form or in the form of a vapour, and includes substances that are comprised in or mixed with other goods;
"to supply" includes,
(a) in relation to goods, to supply (including re-supply) byway of sale, exchange, lease, hire or hire-purchase; and
(b) in relation to services, to provide, grant or confer;
"trade or commerce" means trade or commerce within Barbados or between Barbados and a place or places outside Barbados.
(2) Where it is alleged in any proceeding under thisAct that a person was a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is proved, that the personwas a consumer in relation to those goods or services.
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(3) Areference in thisAct to the supply of services does not include a reference to the renderingof any services under a contract of employment; and for that purpose "contract of employment" means a contract of service or apprenticeship, whether it is express or implied, and, if it is express,whether it is oral or inwriting.
PART II
UNFAIRCONTRACTTERMS
3. In this Part and the Schedule,
"consumer contract"means a contract between a supplier and a consumer where the contract is one
(a) of which the proper law is the law of Barbados or to which section 10 applies; and
(b) inwhich,where the subject-matter of the contract is goods, the goods are consumer goods;
"contract term"means a term in a consumer contract, being a term that has notbeen individuallynegotiatedwithin section4.
4. (1) Acontract term is not individually negotiated for the purposes of this Part or the Schedule if it was drafted in advance and the consumer was not able to influence the substance of the term.
(2) Notwithstanding that a specific contract term or aspects of a specific contract termwasorwere in fact individuallynegotiated, the terms of the rest of the contract fall to be regarded as terms that have not been individually negotiated for the purposes of this Part if an assessment of the contract overall shows that the contract is a pre-formulated standard contract.
5. It is for a supplierwho claims that a contract termwas individually negotiated to show that it was.
Interpreta- tion of this Part. Schedule.
Terms that have not been individually negotiated. Schedule.
Burden of proof.
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6. (1) A supplier shall ensure that any written contract term is expressed inplain, intelligible language.
(2) If there is doubt about themeaning of awritten contract term, the interpretation that ismost favourable to the consumer shall prevail.
7. Acontract termisunfair if, to thedetrimentof theconsumer, it causes a significant imbalance in the rights of the supplier and the consumer.
8. (1) Indeterminingwhether a contract term isunfair, consideration is tobegiven to the following:
(a) the nature of the goods or services for which the contract was concluded;
(b) all the other termsof the contract or of another contract onwhich it is dependent;
(c) the interests of the supplier;
(d) the interests of the particular class of consumerswho are likely to adhere to the contract;
(e) all the circumstances attending the conclusion of the contract at the timeof its conclusion.
(2) In so far as a contract term is in plain, intelligible language, the assessment of its fairness shall not relate
(a) to the definition of the main subject-matter of the contract; or
(b) to the adequacy of the price or remuneration as against the goods or services supplied in exchange.
(3) Where it is asserted in anyproceedings in reliance on this Part that a contract term is unfair, it is for the supplier to show that the contract term isnotunfair.
(4) Without prejudice to the generality of subsection (1), a contract termwhich is described in the Schedule is unfair.
Written terms to be plain and intelligible.
Assessment of unfairness.
Unfair terms.
ss.6-8
Schedule.
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9. Anunfair contract term is unenforceable against the consumer.
10. (1) Where the proper lawof a consumer contractwould, but for a term in that contract that the proper law should be the law of some country other than Barbados (or a term to the like effect), be the law of Barbados, this Part applies to the contract notwithstanding that term.
(2) Where a consumer contract to which subsection (1) applies contains a term that purports to substitute, or has the effect of substituting, provisions of the lawof somecountry other thanBarbados for all or anyof the provisions of this Part, this Part applies to the contract notwithstanding that term.
11. (1) A termof a consumer contract, including a term that is not set out in the contract but is incorporated in the contract by a term of the contract, is void if it purports to exclude, restrict or modify, or has the effectof excluding, restrictingormodifying,
(a) the application in relation to that contract of all or any of the provisions of this Part; or
(b) the exercise of a right conferred by such a provision.
(2) A term of a consumer contract is not to be taken as purporting to exclude, restrict ormodify the applicationof a provisionof this Part unless the termdoes so expressly or is inconsistentwith that provision.
PART III
UNFAIRTRADEPRACTICES
12. (1) A person shall not, in trade or commerce as a supplier, engage in conduct that is, or is likely to be, misleading or deceptive.
(2) Nothing in this Part is to be construed as limiting the generality of subsection (1).
Effect of unfair term.
Proper law.
Application of this Part.
Misleading or decep- tive conduct.
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13. A person shall not, in trade or commerce as a supplier,
(a) falsely represent that goods are of a particular standard, quality, grade, composition, style ormodel or havehad aparticular history or a particular previous use;
(b) falsely represent that services are of a particular standard, quality, value or grade;
(c) falsely represent that goods are new;
(d) falsely represent that aparticularpersonhasagreed toacquiregoods or services;
(e) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits that they do not have;
(f) represent that he has a sponsorship, approval or affiliation that he does not have;
(g) make false ormisleading representations concerning the price of any goods or services;
(h) make false ormisleading representations concerning the need for any goods, services, replacements or repairs, or concerning the availability of facilities for the repair of goods or the availability of spare parts for goods;
(i) make false ormisleading representations concerning the place of origin of goods; or
(j) make falseormisleading representations concerning the existence, exclusion or effect of any condition,warranty, guarantee, right or remedy relating to goods or services.
14. Aperson shall not, in trade or commerce, in connectionwith the supply or possible supply of goods or services or in connectionwith the promotion by anymeans of the supply of goods or services, offer a gift, prize or other free itemwith the intention of not providing the gift, prize or other free item as offered.
False representa- tions.
Offering gifts and prizes.
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15. Aperson shall not, in trade or commerce as a supplier, engage in conduct that is liable tomislead the public as to the nature,manufacturing process, characteristics, suitability for a purpose, or quantity, of goods.
16. Aperson shall not, in trade or commerce as a supplier, engage in conduct that is liable tomislead the public as to the nature, characteristics, suitability for a purpose, or quantity, of services.
17. Aperson shall not, in trade or commerce, in connectionwith the supply or possible supply of goods or services or in connectionwith the promotion by any means of the supply of goods or services, make a representationwith respect to an amount that, if paid, would constitute a part of the consideration for the supply of the goods or services, unless,
(a) where the transaction is not a credit transaction, he also specifies the cash price of the goods or services;
(b) where the transaction is a credit transaction, he also specifies
(i) the total sum to be paid for the goods or services;
(ii) the number of instalments bywhich payment is to bemade;
(iii) the rate of interest thatwill be charged; and
(iv) the deposit, if any, thatmust bemade.
18. (1) Aperson shall not, in tradeor commerce as a supplier, supply goods towhichmore than one price is appended at a price that is greater than the lower, or lowest, of the prices in question.
(2) In subsection (1), a reference to a price appended to goods includes a reference to a price
(a) that is annexed or affixed to, or is written, printed, stamped or located on, or otherwise applied to, the goods or any band, ticket, covering, label, reel or thing used in connectionwith the goods;
(b) that is used in connectionwith the goods or anything onwhich the goods aremounted for display or exposed for sale;
Misleading conduct in relation to goods.
Misleading conduct in relation to services.
Full cost to be stated in certain cases.
Dual pricing.
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(c) that is determinedon thebasisof anythingencodedonor in relation to the goods;
(d) that is published in relation to the goods in a catalogue available to thepublic if
(i) a time is specified in the catalogue as the time afterwhich the goodswillnotbesoldat thatpriceand that timehasnotpassed; or
(ii) in any other case, the catalogue may reasonably be regarded as not out-of-date; or
(e) that is in any other way represented in a manner from which it may reasonably be inferred that the price represented is a price applicable to the goods.
(3) Where a price appended to goods is written, stamped or located wholly or partly over another price, or other prices, appended to the goods, all the prices are, for the purposes of subsection (1), prices appended to the goods.
(4) It is a defence to a prosecution of a person for a contravention of this section that
(a) thecontravention in respectofwhich theprosecutionwas instituted was due to the act or default of another person (other than a director, employee or agent of the defendant), to an accident or to some other cause beyond the defendant's control; and
(b) the defendant had taken all reasonable precautions and exercised due diligence to avoid the contravention.
(5) Aprice shall be disregarded for the purposes of this section if
(a) the goods towhich the price is appended are duty-free goods and the price is expressed in a currency other thanBarbados currency; or
(b) the pricewas appended to the goods outsideBarbados in relation to the supply of the goods outside Barbados.
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(6) In this section "price" includes any representation that may reasonably be inferred to be a representation of a price.
19. (1) A person shall not, in trade or commerce as a supplier, advertise for supply at a special price goods or services that he does not intend tooffer for supply, or that hehasno reasonablegrounds forbelieving that he can supply, at that price, for a period that is, and in quantities that are, reasonable having regard to the nature of the market in which the supplier carries on business and the nature of the advertisement.
(2) A personwho has a limited stock of goods, or whose capacity to supply services is limited, does not contravene subsection (1) if he states in the advertisementmentioned in that subsection that his stockof the goods, or, as the casemay be, his capacity to supply the services, is limited.
20. Aperson shall not, in trade or commerce as a supplier, induce a consumer to acquire goods or services under a contract by representing that the consumer will, after the contract is made, receive a rebate, commissionor other benefit in return for giving the first-mentionedperson the names of prospective customers or otherwise assisting that person to supply goods or services to other consumers, if receipt of the rebate, commission or other benefit is contingent on an event occurring after the contract ismade.
21. A person shall not, in trade or commerce as a supplier, accept payment or other consideration for goods or serviceswhere at the time of the acceptance
(a) he intends not to supply the goods or services; or
(b) he intends to supply goods or servicesmaterially different from the goods or services in respect of which the payment or other consideration is accepted.
22. Aperson shall not, in trade or commerce as a supplier, make a falseormisleadingstatementconcerning theprofitabilityor riskoranyother material aspect of any business activity that he has represented as one that can be, or can be to a considerable extent, carried on at a person's place of residence.
Bait advertising.
Referral selling.
Falsely accepting payment.
Misleading statements.
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23. (1) A person shall not promote or operate a pyramid selling scheme.
(2) For thepurposesof this section, the term"pyramid selling scheme" means a scheme
(a) that provides for the supply of goods or services or both for reward; and
(b) that, tomany participants, constitutes primarily an opportunity to sell an investment opportunity rather thananopportunity to supply goods or services; and
(c) that is unfair, or is likely to be unfair, tomanyof the participants in that
(i) the financial rewards of many of the participants are dependent on the recruitment of additional participants; and
(ii) the number of additional participants thatmust be recruited to produce reasonable rewards to participants is either not attainable, or is not likely to be attained, by many of the participants.
(3) In subsection (2), "participants"means participants in the scheme.
24. (1) Aperson shall not, in trade or commerce as a supplier, assert a right to payment froma consumer for unsolicited goods or services.
(2) Aperson shall not, in trade or commerce as a supplier, assert a right to payment from another person of a charge for the making in a directory of an entry relating to that other person, unless the first- mentioned person knows or has reasonable cause to believe that the other person has authorised themaking of the entry.
(3) Aperson is not liable to make any payment to a supplier, and is entitled to recover against a supplier any paymentmade by the person to the supplier, in full or part satisfaction of a charge for the making of an unauthorised entry in a directory.
Pyramid selling.
Assertion of right to payment prohibited in certain cases.
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(4) For the purposes of this section, a person shall be deemed to assert a right to a payment from another person for unsolicited goods or services or of a charge for the making of an unauthorised entry in a directory if the first-mentionedperson
(a) makes a demand for the payment, or asserts a present or prospective right to the payment;
(b) threatens tobringany legal proceedingwith aview toobtaining the payment;
(c) places or causes to be placed the nameof the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining thepayment;
(d) invokes or causes to be invoked anyother collection procedure, or threatens to do so,with a view to obtaining the payment; or
(e) sends any invoice or other document stating the amount of the payment or setting out the price of the goods or services or the charge for themakingof theentryandnot statingasprominently, or more prominently, that no claim is made to the payment, or to payment of the price or charge, as the casemay be.
(5) Aperson shall not be taken for the purposes of this section to have authorised themakingof an entry in a directory unless
(a) adocument authorising themakingof the entryhasbeen signedby himor by another person authorised by him;
(b) a copy of the document has been given to him before the right to payment of a charge for themaking of the entry is asserted; and
(c) thedocument specifies
(i) the nameof the directory;
(ii) the nameand address of the personpublishing the directory;
(iii) particulars of the entry;
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(iv) the amount of the charge for themaking of the entry or the basis onwhich the charge is, or is to be, calculated; and
(v) the durationof the authorisation.
(6) Subsections (2) and (3) do not apply to or in relation to a payment if the payment relates to
(a) a contract that wasmade before the commencement date; or
(b) a contract that is made on or after that date by reason of the acceptance after that date of an offer that was made before that date.
(7) In a proceeding against a person in respect of a contravention of this section
(a) in the case of a contravention constituted by asserting a right to payment from a person for unsolicited goods or services, the burden lies on the defendant of proving that he had reasonable cause to believe that therewas a right to payment;
(b) in the case of a contravention constituted by asserting a right to payment froma person of a charge for themaking of an entry in a directory, the burden lies on the defendant of proving that the defendant knewor had reasonable cause to believe that the person had authorised themaking of the entry.
(8) In this section, "making", in relation toanentry inadirectory,means includingor arranging for the inclusionof the entry.
25. (1) A person to whom unsolicited goods are supplied by a person in trade or commerce as a supplier is not liable to make any payment for the loss of or damage to the goods other than loss or damage resulting from the doing by the first-mentioned person of a wilful and unlawful act in relation to the goods during the period specified in subsection (5).
(2) Subject to subsection (3),where, on or after 16th January, 2003, a supplier sends unsolicited goods to a person,
Liability of recipient of unsolicited goods.
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(a) neither the supplier nor any person claiming under the supplier is entitledafter theexpirationof the timespecified in subsection (5) to take action for the recovery of the goods from the person towhom the goodswere sent; and
(b) upon the expirationof that time, thegoodsbecomebyvirtueof this section the property of the person to whom the goods were sent freed anddischarged fromall liens and charges of anydescription.
(3) Subsection (2) does not apply to or in relation to unsolicited goods sent to a person if
(a) the person has during the period specified in subsection (5) unreasonably refused topermit the senderor theownerof thegoods to take possession of the goods;
(b) the sender or the owner of the goods has within that time taken possession of the goods; or
(c) the goodswere received by the person in circumstances inwhich he knew, ormight reasonably be expected to have known, that the goodswere not intended for him.
(4) The supplier is liable to pay to the recipient of unsolicited goods such reasonable costs as are incurred in respect of the storage of those goods.
(5) The period referred to in subsections (1), (2) and (3) is,
(a) if the personwho receives the unsolicited goods gives noticewith respect to the goods to the sender in accordancewith subsection (6),
(i) the periodof onemonthnext following thedayonwhich the notice is given; or
(ii) the period of 3months next following the day onwhich the person received the goods,
whichever first expires;
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(b) in any other case, the period of 3 months next following the day on which the person received the goods.
(6) Anotice under subsection (5) shall be inwriting and shall
(a) state the name and address of the personwho received the goods;
(b) state the address atwhich possessionmaybe taken of the goods if it is an address other than that of that person; and
(c) containastatement to theeffect that thegoodsareunsolicitedgoods.
26. (1) Subject to this section, a person who contravenes any requirement or prohibition contained in any provision of sections 12 to 24 applying tohim isguiltyof anoffence.
(2) Subject to subsection (3), in a prosecution under this section it is a defence if the defendant proves
(a) that the contravention in respect of which the proceeding was institutedwasdue to amistake, to relianceon information supplied by another person, to the act or default of another person, to an accident or to some other cause beyond his control; and
(b) that he took reasonable precautions and exercised due diligence to avoid the contravention.
(3) If a defence providedby subsection (2) involves an allegation that a contraventionwas due to reliance on information supplied by another person or to the act or default of another person, the defendant is not, without leaveof the court, entitled to rely on that defenceunless hehas, not later than 7 days before the day on which the hearing of the proceeding commenced, servedon thepersonbywhom theproceedingwas instituted anotice inwritinggivingsuch information thatwould identifyorassist in the identification of the other person aswas then in his possession.
(4) In aproceedingunder this section in relation to a contraventionof a provisionof thisPart committedby thepublicationof anadvertisement, it is a defence if the defendant proves that he is a person whose business
Contraven- tion of this Part.
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it is to publish or arrange for the publication of advertisements, and that he received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of a provision of this Part.
PART IV
CONTROLOFDISTANCE SELLING
27. (1) The Minister may, after consulting the Commission, by regulations under this section ("distance selling regulations")make such provision as he considers appropriate for the purpose of protecting consumers in relation to distance contracts.
(2) Without prejudice to the generality of subsection (1), distance selling regulationsmaycontainprovisions
(a) regulating theadvertisingandmarketing(including advertisingand marketing bymail-order or doorstep selling) of business that is to be conducted byway of distance contracts;
(b) with respect to the information thatmust be supplied to persons to whomdistance contracts are offered;
(c) with respect to the transparency, clarity and fairness of distance contracts;
(d) requiring information to be given to any such person as may be determinedbyor under the regulations for the purpose of enabling that person to exercise any function conferred on him by the regulations;
(e) for the resolution of disputes and differences between parties to distance contracts, including resolution of such disputes and differences otherwise than by a court;
(f) creating summary offences for contraventions of the regulations and, notwithstanding section 19(10) of the Interpretation Act, imposing in respect of conviction of any such offence,
Distance selling regulations.
Cap. 1.
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(i) in the case of an individual, a fine of $10 000 or imprisonment for a term of 2 years, or both;
(ii) in the case of a person other than an individual, a fine of $100 000.
(3) Without prejudice as aforesaid, distance selling regulationsmay
(a) containdifferent provisions for different cases;
(b) provide for exemptions from or exceptions to any provisions of the regulations;
(c) contain such supplemental, consequential and transitional provisions as theMinister considers appropriate.
(4) In this section,
"distance contract" means a contract concerning goods or services concluded between a supplier and a consumer under a scheme operatedby the supplier,who, for thepurposes of the contract,makes exclusive use of oneormoremeans of distance communicationup to and including the point atwhich the contract is concluded;
"means of distance communication"means ameans which, without the simultaneouspresenceof the supplier and the consumer,maybeused for the conclusion of a contract between the parties.
PARTV
PRODUCTLIABILITY
28. (1) In this Part,
"agricultural produce"means any produce, whether of the soil or other- wise, of stock-farmingor of fisheries;
"tomanufacture", in relation to animals or agricultural produce, includes to rear or grow;
Interpreta- tion of this Part.
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"producer", in relation to a product,means
(a) the personwhomanufactured the product;
(b) in the case of a substance which has been won or abstracted, the personwhowon or abstracted the substance;
(c) in the case of a product which has not beenwon or abstracted but initial characteristics of which are attributable to an industrial orotherprocesshavingbeencarriedout, for example, in relation to agricultural produce, the personwho carried out that process;
"product"meansanygoods, includinganimalsoragriculturalproducereared or grown for supply, and, subject to subsection (2), includes a productwhich is comprised in another product,whether by virtue of being a component part or rawmaterial or otherwise.
(2) For the purposes of this Part, a personwho supplies any product in which other products are comprised, whether by virtue of being component parts or raw materials or otherwise, shall not be treated by reason only of his supply of that product as supplying any of the other products so comprised.
29. (1) Subject to this Part, where any damage is causedwholly or partly by a defect in a product, every person to whom subsection (2) applies is liable for the damage.
(2) This subsection applies to
(a) the producer of the product;
(b) any person who, by putting his name on the product or using a trademark or other distinguishingmark in relation to the product, has held himself out to be the producer of the product;
(c) any personwho has imported the product intoBarbados in order, in the course of any business of his, to supply it to another.
Liability for defects.
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(3) Subject to this Part, where any damage is causedwholly or partly by a defect in a product, any personwho supplied the product, whether to the person who suffered the damage, to the producer of any product in which theproduct in question is comprisedor to anyother person, is liable for the damage if
(a) the person who suffered the damage requests the supplier to identify one ormore of the persons, whether still in existence or not, towhom subsection (2) applies in relation to the product;
(b) that request is made within a reasonable time after the damage occurs; and
(c) the supplier fails, within a reasonable time after receiving the request, either to complywith the request or to identify the person who supplied the product to him.
(4) Where two ormore persons are liable by virtue of this Part for the samedamage, their liability is joint and several.
(5) This section is without prejudice to any liability arising otherwise than by virtue of this Part.
30. (1) Subject to this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes "safety", in relation to a product, includes safety with respect to products comprised in that product and safety in the context of risks of damage to property aswell as in the context of risks of death or personal injury.
(2) In determining for the purposes of subsection (1) what persons generally are entitled to expect in relation to a product, all the circum- stances shall be taken into account, including
(a) themanner inwhich and purposes forwhich the product has been marketed, its get-up, the use of anymark in relation to the product and any instructions for, or warnings with respect to, doing or refraining fromdoing anythingwith or in relation to the product;
Defect inferred.
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(b) what might reasonably be expected to be done with or in rela- tion to the product; and
(c) the timewhen theproductwas suppliedby its producer to another;
and nothing in this section requires a defect to be inferred from the fact alone that the safety of a productwhich is supplied after that time is greater than the safety of the product in question.
31. (1) Subject to this section, in this Part "damage"means death or personal injury to any person or any loss of or damage to any property, includingland.
(2) A person is not liable under section 29 for any damage to any propertywhich, at the time of the damage, is not
(a) of a description of property ordinarily intended for private use, occupation or consumption; and
(b) intended by the person suffering the damagemainly for his own private use, occupation or consumption.
(3) In determining for the purposes of this Part who has suffered any damage to property and when any such damage occurred, the damage shall be regarded as having occurred at the earliest time atwhich a person with an interest in the property had knowledge of thematerial facts about the damage.
(4) For the purposes of subsection (3), the material facts about any damage to any property are such facts about the damage aswould lead a reasonable personwith an interest in the property to consider the damage sufficientlyserious to justifyhis institutingproceedingsfordamagesagainst adefendantwhodidnotdispute liability andwasable to satisfy a judgment.
(5) For the purposes of subsection (3), a person's knowledge includes knowledgewhich hemight reasonably have been expected to acquire
(a) from facts observable or ascertainable by him; or
(b) fromfacts ascertainable byhimwith thehelpof appropriate expert advice which it is reasonable for him to seek;
Damage giving rise to liability.
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but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable by him only with the help of expert advice unless hehas failed to take all reasonable steps to obtain and,where appropriate, to act on that advice.
32. (1) Any damage for which a person is liable under section 29 shall be deemed to have been caused
(a) for the purposes of the Accident Compensation (Reform) Act, by that person'swrongful act, fault or neglect;
(b) for the purposes of the LawReform (Miscellaneous Provisions) Act by that person'swrongful or negligent act or omission.
(2) Where
(a) a person's death is caused wholly or partly by a defect in a product, or a persondies after sufferingdamagewhichhas been so caused;
(b) a request such as mentioned in subsection (3)(a) of section 29 is made to a supplier of the product by that person's personal representatives or, in the case of a personwhose death is caused wholly or partly by the defect, by anydependant or relative of that person; and
(c) the conditions specified in paragraphs (b) and (c) of that subsec- tion are satisfied in relation to that request,
this Part shall have effect for the purposes of theAccident Compensation (Reform) Act and the Law Reform (Miscellaneous Provisions) Act as if liability of the supplier to that person under that subsection did not depend on that person having requested the supplier to identify certain persons or on the said conditionshavingbeen satisfied in relation to a requestmadeby that person.
(3) Where any damage is caused partly by a defect in a product and partly by the fault of the person suffering the damage, theContributory Negligence Act and section 4 of the Accident Compensation (Reform) Act have effect as if the defect were the fault of every person liable by virtue of this Part for the damage caused by the defect.
Application of certain enactments.
Cap. 193A.
Cap. 205.
Cap. 193A. Cap. 205.
Cap.195. Cap. 193A.
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33. The liability of a person by virtue of this Part to a personwho has suffered damage causedwholly or partly by a defect in a product, or to a dependant or relative of such a person, shall not be limited or excluded by any contract term, by any notice or by any other provision.
34. In any proceedings under this Part against any person, in this section referred to as "the personproceeded against", in respect of a defect in a product it is a defence for him to show
(a) that the defect is attributable to compliance with a requirement imposed by or under any enactment;
(b) that the person proceeded against did not at any time supply the product to another;
(c) that the following conditions are satisfied, that is to say:
(i) that the only supply of the product to another by the supplier wasotherwise than in the courseof abusiness of the supplier;
(ii) that section 29(2) does not apply to the supplier, or applies to himbyvirtue only of things done otherwise thanwith a view toprofit;
(d) that the defect did not exist in the product at the relevant time;
(e) that the state of scientific and technical knowledge at the relevant timewas not such that a producer of products of the samedescrip- tion as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control; or
(f) that the defect
(i) constituted a defect in a product, in this paragraph referred to as "the subsequent product", in which the product in question has been comprised; and
(ii) was wholly attributable to the design of the subsequent product or to compliance by the producer of the product in question with instructions given by the producer of the subsequent product.
Prohibition on exclu- sions from liability.
Defences in civil proceed- ings.
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35. (1) Subject to subsection (2), this Part binds theCrown.
(2) TheCrown shall not, as regards theCrown's liability by virtue of this Part, be boundby this Part further than theCrown ismade liable in tort or in reparation under the Crown Proceedings Act.
PARTVI
CONSUMERSAFETY
36. (1) In this Part,
"consumer goods" has themeaninggivenby section37(6);
"safe", in relation to anygoods,means such that there is no risk, or no risk, apart fromone reduced to aminimum, that any of the followingwill (whether immediatelyor after adefiniteor indefiniteperiod) cause the death of, or any personal injury to, any personwhatsoever, that is to say:
(a) the goods;
(b) the keeping, use or consumption of the goods;
(c) the assembly of any of the goods which are, or are to be, suppliedunassembled;
(d) the emission or leakage from the goods or, as a result of the keeping, use or consumption of the goods, from anything else;
(e) the relianceon the accuracyof anymeasurement, calculationor other readingmade by, or bymeans of, the goods.
(2) In the definition of "safe" in subsection (1) references to the keep- ing, use or consumption of any goods are references to
(a) the keeping, use or consumption of the goods by the persons by whom,and inall or anyof thewaysor circumstances inwhich, they might reasonably be expected to be kept, used or consumed; and
Application to Crown.
Cap. 197.
Interpreta- tion of this Part.
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(b) the keeping, use or consumption of the goods either alone or in conjunctionwithothergoods inconjunctionwithwhich theymight reasonably be expected to be kept, used or consumed.
37. (1) Aperson shall not
(a) supply any consumer goodswhich fail to complywith the general safety requirement;
(b) offer or agree to supply any such goods; or
(c) expose or possess any such goods for supply.
(2) For the purposes of this section, consumer goods fail to comply with the general safety requirement if they are not reasonably safe having regard to all the circumstances, including
(a) themanner inwhich, and purposes forwhich, the goods are being or would be marketed, the get-up of the goods, the use of any mark in relation to thegoodsandany instructionsorwarningswhich are given or would be given with respect to the keeping, use or consumption of the goods;
(b) any standards of safety published by any person or authority, and having legal effect as published, either for goods of a description which applies to the goods in question or for matters relating to goods of that description; and
(c) the existence of anymeans bywhich it would have been reason- able for the goods to have beenmade safer.
(3) For the purposes of this section, consumer goods shall not be regardedas failing to complywith thegeneral safety requirement in respect of
(a) anythingwhich is shown tobe attributable to compliancewith any requirement imposed by or under any enactment; or
General safety require- ment.
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(b) any failure to domore in relation to anymatter than is required by
(i) any safety regulations imposing requirementswith respect to thatmatter;
(ii) any standards of safety prescribed for the purposes of this section and imposing requirements with respect to that matter; or
(iii) anyprovision of any enactment imposing such requirements with respect to thatmatter as are designated for the purposes of this subsection by any such enactment.
(4) In any proceedings against a person for an offence under this section in respect of any goods, it is a defence for him to show
(a) that he reasonably believed that the goods would not be used or consumed inBarbados;
(b) that bothof the followingconditions are satisfied:
(i) that he supplied the goods, offered or agreed to supply them or, as the case may be, exposed or possessed them for supply in the course of carrying on a retail business;
(ii) that, at the time he supplied the goods or agreed or offered to supply them, or exposed or possessed them for supply, he neither knew nor had reasonable grounds for believing that the goods failed to comply with the general safety requirement; or
(c) that the terms onwhich he supplied the goods or agreed or offered to supply them or, in the case of goods which he exposed or possessed for supply, the terms on which he intended to supply themprovided for, or contemplated, the acquisitionof an interest in the goods by the persons supplied or to be supplied.
(5) For the purposes of subsection (4)(b), goods are supplied in the course of carrying on a retail business if
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(a) whether or not they are themselves acquired for a person's private use or consumption, they are supplied in the course of carrying on a business of making a supply of consumer goods available to personswho generally acquire them for private use or consump- tion; and
(b) the descriptions of goods the supply ofwhich ismade available in the course of that business do not, to a significant extent, include manufactured or imported goodswhich have not previously been supplied inBarbados.
(6) In this section the expression "consumer goods" does not include aircraft other thanhang-gliders.
(7) Apersonwho contravenes this section is guilty of an offence.
38. (1) TheMinister may, after consulting the Barbados National Standards Institution,byregulationsunder this section("safety regulations"), make such provisions as he considers appropriate for the purposes of section 37(3) and for the purpose of securing
(a) that goods towhich this section applies are safe;
(b) that goods towhich this section applieswhich areunsafe, orwould be unsafe in the hands of persons of a particular description, are notmade available to persons generally or, as the casemay be, to persons of that description; and
(c) that appropriate information is, and inappropriate information is not, provided in relation to goods towhich this section applies.
(2) Without prejudice to the generality of subsection (1), safety regulationsmaycontainprovisions
(a) with respect to the performance, composition or contents, design, construction, finish or packaging of goods to which this section applies, andwith respect to othermatters relating to such goods;
(b) with respect to the giving, refusal, alteration or cancellation of approvals of such goods, of descriptions of such goods or of standards for such goods;
Safety regulations.
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(c) with respect to the conditions thatmaybe attached to any approval givenunder the regulations;
(d) prescribing the fees to be paid on the giving or alteration of any approval under the regulations andon themakingof anapplication for such an approval or alteration;
(e) with respect to appeals against refusals, alterations and cancella- tions of approval given under the regulations and against the conditions contained in such approvals;
(f) for requiring goods to which this section applies to be approved under the regulations, or to conform to the requirements of the regulations or to descriptions or standards specified inor approved byor under the regulations;
(g) with respect to the testing or inspection of goods to which this section applies, including provision for determining the standards to be applied in carrying out any test or inspection;
(h) with respect to thewaysofdealingwithgoodsofwhich someor all do not satisfy a test required by or under the regulations or a standard connectedwith a procedure so required;
(i) requiring amark,warning or instruction or any other information relating to goods to be put on or to accompany the goods or to be used or provided in some other manner in relation to the goods, and for securing that inappropriate information is not given in relation to goods either by means of misleading marks or otherwise;
(j) prohibiting persons from supplying, or from offering to supply, agreeing to supply, exposing for supply or possessing for supply, goods towhich this section applies and component parts and raw materials for suchgoods;
(k) requiring information to be given to any such person as may be determinedbyor under the regulations for the purpose of enabling that person to exercise any function conferred on him by the regulations.
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(3) Without prejudice as aforesaid, safety regulationsmay
(a) containdifferent provisions for different cases;
(b) provide for exemptions fromanyprovisions of the regulations;
(c) contain such supplemental, consequential and transitional provisions as theMinister considers appropriate.
(4) Safety regulations shall not provide for any contravention of the regulations to be an offence.
(5) This section applies to goods other than aircraft, but does not apply to hang-gliders.
39. (1) Where safety regulationsprohibit aperson from supplyingor offering or agreeing to supply any goods or from exposing or possessing any goods for supply, that person is guilty of an offence if he contravenes theprohibition.
(2) Where safety regulations require apersonwhomakesor processes any goods in the course of carrying on a business
(a) to carry out a particular test or use a particular procedure in connectionwith themakingorprocessingof thegoodswith aview to ascertainingwhether thegoods satisfy any requirements of such regulations;or
(b) to deal or not to deal in a particular way with a quantity of the goods of which the whole or part does not satisfy such a test or does not satisfy standards connectedwith such a procedure,
that person is guilty of an offence if he does not comply with the requirement.
(3) If a person contravenes a provision of safety regulations which prohibits or requires the provision, bymeans of amark or otherwise, of information of a particular kind in relation to goods, he is guilty of an offence.
Contraven- tion of safety regulations.
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(4) Where safety regulations require anyperson togive information to another for the purpose of enabling that other to exercise any function, that person is guilty of anoffence if
(a) he failswithout reasonable cause to complywith the requirement; or
(b) ingiving the informationwhich is requiredofhim
(i) hemakes any statementwhichheknows is false in amaterial particular; or
(ii) he recklesslymakes any statementwhich is false in amaterial particular.
PARTVII
RECALLOFGOODS
40. (1) Subject to sections 43 and 45, where
(a) a person, in this section referred to as the "supplier", in trade or commerce supplies consumergoodsonorafter16th January,2003; and
(b) it appears to theMinister that the goods are goods of a kindwhich will ormaycause injury to anyperson and that the supplier has not taken satisfactory action toprevent thegoods causing injury to any person,
the Minister may, by notice in writing published in the Gazette, require the supplier to do one ormore of the following:
(aa) take actionwithin the period specified in the notice to recall the goods;
(bb) disclose to the public, or to a class of persons specified in the notice, in themanner andwithin the period specified in the notice, oneormore of the following:
(i) the nature of a defect in, or a dangerous characteristic of, the goods specified in the notice;
Compulsory recall of goods.
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(ii) the circumstances, beingcircumstances specified in the notice, in which the use of the goods is dangerous;
(iii) procedures for disposing of the goods specified in the notice;
(cc) inform the public, or a class of persons specified in the notice, in themanner andwithin the period specified in the notice, that the supplier undertakes to dowhichever of the following the supplier thinks is appropriate:
(i) except where the notice specifies a dangerous characteristic of the goods, repair the goods;
(ii) replace the goods;
(iii) refund to a person towhom the goodswere supplied, whether by the supplier or by another person, the price of the goods,
within the period specified in the notice.
(2) The Minister may by notice in writing published in the Gazette give directions as to themanner inwhich the supplier is to carry out a recall of goods required under subsection (1).
(3) Where the supplierunder subsection (1)undertakes to repairgoods, the supplier shall cause the goods to be repaired so that any defect in the goods specified in the notice under subsection (1) is remedied.
(4) Where the supplier under subsection (1) undertakes to replace goods, the supplier shall replace the goods with like goods which, if a defect in, or a dangerous characteristic of, the first-mentioned goodswas specified in the notice under subsection (1), do not have that defect or characteristic.
(5) Where the supplier under subsection (1)undertakes to repair goods or replace goods, the cost of the repair or replacement, including any necessary transportation costs, shall be borne by the supplier.
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(6) Where goods are recalled, whether voluntarily or in accordance with a requirementmade by theMinister under subsection (1), a person who has supplied or supplies any of the recalled goods to another person outside Barbados shall, as soon as practicable after the supply of those goods, give a notice inwriting to that other person
(a) stating that the goods are subject to recall; and
(b) if the goods contain a defect or have a dangerous characteristic, setting out the nature of that defect or characteristic.
(7) Where a person is required under subsection (6) to give a notice inwriting to another person, the first-mentionedperson shall,within 10 days after giving that notice, provide theMinister with a copy of that notice.
(8) A person who contravenes subsection (7) is guilty of an offence.
41. Where a notice under section 40(1) is in force in relation to a person, he
(a) shall comply with the requirements and directions in the notice; and
(b) shall not, in trade or commerce,
(i) where the notice specifies a defect in, or a dangerous characteristicof, thegoods, supplygoodsof thekind towhich the notice relateswhich have that defect or characteristic;
(ii) in any other case, supply goods of the kind to which the notice relates.
42. Where
(a) a person contravenes section 41 by
(i) supplying goods of a kind in relation towhich a notice under section 40(1) is in force; or
(ii) failing to complywith the requirements of such anotice; and
Compliance with goods recall notice.
Loss or damage caused by contraven- tion of goods recall notice.
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(b) another person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods,
that other person shall be deemed for the purposes of this Act to have suffered the loss or damageby the supplyingof the goods, or by the failure of the first-mentioned person to complywith the notice, as the casemay be.
43. (1) Subject to section 45, where the Minister proposes to publish a notice under section 40(1) in relation to goods of a particular kind, theMinister shall prepare
(a) a draft of the notice that he proposes to publish; and
(b) a summary of his reasons,
and shall, bynotice inwritingpublished in theGazette, invite anyperson, in this section referred to as a "supplier",who supplied or proposes to supply goods of that kind to notify theMinister, within the period, in this section referred to as "the relevant period", of 10 days commencing on the day specified in the last-mentioned notice, being not earlier than the day on which that notice is published in theGazette, whether the supplierwishes theMinister to hold a conference in relation to the proposedpublication of the first-mentionednotice.
(2) Anotice published under subsection (1) shall set out a copy of the draft notice under section 40(1) and a copy of the summary of the reasons for the proposed publication of the notice.
(3) If no supplier notifies theMinister in writingwithin the relevant period, orwithin such longerperiodas theMinister allows, that the supplier wishes the Minister to hold a conference in relation to the proposed publication of the notice under section 40(1), theMinister shall proceed to take such action under section 40 as he thinks fit.
Conference to be held in certain cases.
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(4) If a supplier notifies theMinister in writing within the relevant period, orwithin such longerperiodas theMinister allows, that the supplier wishes the Minister to hold a conference in relation to the proposed publication of the notice under section 40(1), theMinister shall appoint a day (being not later than 14 days after the end of that period), time and place for theholdingof the conference, andgivenotice of theday, timeand place so appointed to each supplierwho so notified theMinister.
(5) At a conference under this section
(a) theMinister or a person or persons nominated in writing by the Minister is or are entitled to be present;
(b) each supplierwhonotified theMinister in accordancewith subsec- tion (4) is entitled to be present or to be represented;
(c) any other personwhose presence at the conference is considered by theMinister to be appropriate is entitled to be present or to be represented; and
(d) the procedure to be followed shall be as determined by the Minister.
(6) TheMinister shall cause a record of proceedings at a conference under this section to be kept.
(7) The Minister shall, as far as is practicable, ensure that each personwho, in accordancewith subsection (5), is entitled to be present or who is representing such a person at a conference is given a reasonable opportunity at the conference to present his case and, in particular, to inspect any documents which theMinister proposes to consider for the purpose ofmaking a decision after the conclusion of the conference, other than anydocument that contains particulars of a secret formula or process, and tomake submissions in relation to those documents.
44. As soon as is practicable after the conclusion of a conference in relation to the proposed publication of a notice under section 40(1), the Minister shall proceed to consider what action he should take under section 40.
Action after con- clusion of conference.
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45. (1) Where it appears to theMinister that goods of a particular kind create an imminent risk of death, serious illness or serious injury, the Ministermay,bynotice inwritingpublished in theGazette, publishanotice in relation to the goods under section 40(1)without delay.
(2) Where the Minister publishes a notice in the Gazette under subsection (1)
(a) in a casewhere the notice is published before theMinister takes any action under section 43(1) in relation to goods of a particular kind, section 43 does not apply in relation to the action that the Ministermay take under section 40(1) in relation to goods of that kind; or
(b) in any other case, any action taken by theMinister under section 43(1) in relation to goods of a particular kind ceases to have effect and, if a conference had, under section 43, been arranged or had commenced, theMinister may publish the notice under section 40(1)without regard to the action taken under section 43.
46. (1) Where theMinister or an officer authorised by theMinister for the purposes of this section, in this section referred to as an "authorised officer", has reason to believe that a person who, in trade or commerce, suppliesconsumergoodsofaparticularkindwhichwill ormaycause injury toanyperson is capableof furnishing information, producingdocumentsor givingevidence relating togoodsof thatkind, theMinisteror theauthorised officermay, by notice inwriting served on that person, require him
(a) to furnish to theMinisteror toanauthorisedofficer, andwithin such reasonable time as is specified in the notice, any such information;
(b) to produce to the Minister or to an authorised officer, in accordancewith such reasonable requirements as are specified in the notice, any such documents; or
(c) in person or by his representative to appear before theMinister or an authorised officer at such reasonable time and place as are specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.
Exception in case of danger to public.
Power to obtain informa- tion, documents and evidence.
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(2) Where an authorised officer has reason to believe that consumer goods will or may cause injury to a person, he may, for the purposes of ascertaining whether goods of that kind will or may cause injury to any person, enter any premises in or from which he has reason to believe that a person supplies goods of that kind in trade or commence and
(a) inspect goods of that kind;
(b) take samples of goods of that kind;
(c) inspect any documents relating to goods of that kind and make copies of, or take extracts from, those documents; or
(d) inspect equipmentused in themanufacturing,processingor storage of goods of that kind.
(3) The powers of an authorised officer under subsection (2) shall not be exercised except
(a) pursuant to awarrant issued under subsection (5); or
(b) in circumstances where the exercise of those powers is required without delay in order to protect life or public safety.
(4) Anauthorisedofficermayapply to amagistrate for the issueunder subsection (5) of awarrant to exercise the powers of an authorised officer under subsection (2) in relation to premises.
(5) Where an application ismade to amagistrate under subsection (4), he may issue a warrant authorising an authorised officer named in the warrant, with such assistance as the officer thinks necessary and if necessary by force, to enter the premises specified in the warrant and to exercise thepowersof anauthorisedofficer under subsection (2) in relation to those premises.
(6) Amagistrate shall not issue awarrant under subsection (5) unless
(a) an affidavit has been furnished to the magistrate setting out the grounds on which the issue of the warrant is being sought;
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(b) the applicant or some other person has given to the magistrate such further information (if any) as he may require concerning the grounds on which the issue of the warrant is being sought; and
(c) the magistrate is satisfied that there are reasonable grounds for issuing thewarrant.
(7) Awarrant issued under subsection (5) shall
(a) specify the purpose forwhich thewarrant is issued;
(b) statewhether entry is authorised to bemade at any time of the day or night or during specified hours of the day or night;
(c) includeadescriptionof thekindofgoodsauthorised tobe inspected or sampled; and
(d) specify a day, not being later than7days after the dayonwhich the warrant is issued, at the end of which the warrant ceases to have effect.
(8) Where anauthorisedofficer takes samplesunder subsection (2)(b), he shall pay a reasonable price for the goods sampled.
(9) Apersonwho
(a) refuses or fails to comply with a notice under this section to the extent that he is capable of complyingwith it; or
(b) in purported compliance with such a notice furnishes information or gives evidence that, to his knowledge, is false or misleading inamaterialparticular,
is guiltyof anoffence.
(10) A person who refuses or fails to provide an authorised officer acting in accordancewith subsection (2)with all reasonable facilities and assistance for the effective exercise of the authorised officer's powers under that subsection is guilty of an offence.
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(11) Any information furnished or evidence given by a person under this section, any document produced by a person under this section, and any information, evidence or document obtained under this section, is not admissible inevidenceagainsthim
(a) in anyproceedings institutedbyhim;or
(b) in anyother proceedings, other than proceedings against him for a contraventionof a provisionof this section.
47. (1) Where a person voluntarily takes action to recall goods because thegoodswill ormaycause injury to anyperson, he shall,within2 days after taking that action, give a notice inwriting to theMinister
(a) stating that the goods are subject to recall; and
(b) setting out the nature of the defect in, or dangerous characteristic of, the goods.
(2) Apersonwho contravenes subsection (1) is guilty of an offence.
48. (1) Where the Minister publishes a notice in writing in the Gazette under section 43(1) or 45(1), he shall, within 2 days after the publication of that notice in theGazette, or, if it is not practicable to do so within that period, as soon as practicable after the endof that period, either
(a) cause a copy of the notice to be given to each personwho, to the knowledgeof theMinister, supplies goodsof thekind towhich the notice relates; or
(b) cause a copy of the notice to be published in every local newspaper circulating inBarbados.
(2) A failure to comply with subsection (1) in relation to a notice does not invalidate the notice.
49. The liability of an insurer under a contract of insurancewith a person, being a contract relating to
(a) the recall of goods supplied or proposed to be supplied by that person; or
Voluntary recall.
Suppliers to be given notice in certain cases.
Certain action not to affect insurance contracts.
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(b) that person's liability with respect to possible defects in goods supplied or proposed to be supplied by that person,
shall not be affectedby reasononly that that persongives to theMinister or to a public officer information relating to any goods supplied or proposed to be supplied by that person.
PART VIII
INDUSTRYCODES
50. In this Part,
"applicable industry code", in relation to apersonwho is a participant in an industry,means
(a) the prescribed provisions of any mandatory industry code relating to the industry; or
(b) theprescribedprovisionsof anyvoluntary industry code relating to the industry that bind that person,
as the casemay be;
"consumer", in relation to an industry, means a consumer of goods or services suppliedbyparticipants in that industry;
"industry" includes franchising, and franchisors and franchisees are participants in the industryof franchising,whetherornot theyare also participants in another industry;
"industry code"means a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry, and "mandatory" and "voluntary", in relation to an industry code or specified provisions of such a code, means respectively a code or specified provisions of a code that is or are declared by regulations under section 52 to be mandatory or voluntary, as the casemaybe, in relation to that industry;
"participant" means participant as a supplier.
Interpreta- tion of this Part.
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51. A participant in an industry shall not, in trade or commerce, contravene an applicable industry code.
52. The Commissionmay, with the approval of theMinister, make regulations
(a) prescribing an industry code, or specifiedprovisionsof an industry code, for the purposes of this Part;
(b) declaring an industry code, or specified provisions of an industry code, to bemandatory or voluntary;
(c) for avoluntary industrycode, or specifiedprovisionsof avoluntary industrycode, specifying
(i) themethod bywhich a person is bound by the code or those provisions; and
(ii) themethod bywhich a person ceases to be so bound,
whether by reference to provisions of the code or otherwise;
(d) making such provision as the Commission thinks fit for the registering of persons bound or otherwise affected by an industry code;
(e) creating for contraventions of an applicable industry code summary offences punishable asmentioned in section 61(1)(c).
53. For the purposes of this Part, a voluntary industry code, or provisions of such a code, binds or bind a person who has agreed, as prescribed, to be bound by the code or those provisions andwho has not subsequently ceased, as prescribed, to be bound by it or them.
Contraven- tion of industry codes.
Regulations relating to industry codes.
Binding force of industry codes.
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PART IX
ADMINISTRATIONANDENFORCEMENT
54. (1) It is the duty of theCommission
(a) to administer thisAct; and
(b) to enforce the provisions of thisAct.
(2) For the purposes of its duty under subsection (1)(b), the Commission may institute and carry on such proceedings in respect of contraventions of the provisions of thisAct asmay be necessary to ensure observance of those provisions; and any officer of theCommission, if so authorised by the Commission, may institute and carry on any such proceedingsonbehalf of theCommission,whether or not he is anattorney- at-law.
(3) Without prejudice to any other power that the Commission has towards the carrying out of its duty under subsection (1), theCommission has the powers conferred on the Commission by sections 55 to 59.
55. (1) TheCommission may
(a) serve on any person a notice (a "prohibition notice") prohibiting that person, exceptwith theCommission's consent, from supply- ing, or from offering to supply, agreeing to supply, exposing for supply or possessing for supply, any relevant goods which the Commission considers are unsafe andwhich are described in the notice;
(b) serve on any person a notice (a "warning notice") requiring that personat his ownexpense topublish, in a formand manner andon occasions specified in the notice, awarning about relevant goods which theCommission considers are unsafe, being goodswhich that person supplies or has supplied and which are described in the notice.
Fair Trading Commis- sion to administer and enforce this Act.
Power of Commis- sion to issue prohibition notices and warning notices.
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(2) Regulations may make provision with respect to prohibition notices and warning notices, and may prescribe the manner in which information is to be given to any person.
(3) A consent given by the Commission for the purposes of a prohibition notice or a warning notice may impose such conditions on the doing of anything for which the consent is required as the Commission considers appropriate.
(4) In this section "relevant goods"means, in relation to a prohibition notice or awarning notice, any goods towhich section 38 applies.
(5) Apersonwhocontravenes aprohibitionnoticeor awarningnotice is guiltyof anoffence.
56. (1) If in pursuance of its duty under section 54(1)(a) the Commission considers that, for the purpose of deciding whether
(a) regulations need to bemade, varied or revoked; or
(b) a prohibition notice needs to be served, varied or revoked; or
(c) awarning notice needs to be served or revoked,
theCommissionneeds informationwhichanotherperson is likely tobeable to furnish, itmay serve on that other person a notice under this section.
(2) A notice served on a person under this section may require that person
(a) to furnish to the Commission, within a period specified in the notice, such information as is so specified;
(b) to produce such records as are specified in the notice at a time and place so specified, and to permit a person appointed by the Commission for the purpose to take copies of the records at that time and place.
(3) Aperson is guilty of anoffence if he
(a) fails,without reasonable cause, to complywith a notice served on him under this section; or
Power of Commis- sion to obtain informa- tion.
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(b) in purporting to comply with a requirement which by virtue of paragraph (a) of subsection (2) is contained in such a notice
(i) furnishes informationwhich he knows is false in amaterial particular; or
(ii) recklessly furnishes informationwhich is false in amaterial particular.
57. (1) TheCommission mayaccept awrittenundertakinggivenby a person for the purposes of this section in connection with a matter in relation towhich theCommissionhas a functionunder thisAct.
(2) A person who gave an undertaking under subsection (1) may withdrawor vary the undertaking at any time, but onlywith the consent of theCommission.
(3) If the Commission considers that a person who gave such an undertaking has breached any of its terms, theCommissionmay apply to the court for an order under subsection (4).
(4) If on such an application the court is satisfied that a person who gave an undertaking under subsection (1) has breached a term of the undertaking, the court may make all or any of the following orders:
(a) an order directing the person to comply with the terms of the undertaking;
(b) an order directing the person to pay to theGovernment an amount up to the amount of any financial benefit that the person has obtaineddirectly or indirectly and that is reasonably attributable to the breach;
(c) an order that the court considers appropriate directing the person to compensate any other personwho has suffered loss or damage as a result of the breach;
(d) any other order that the court considers appropriate.
(5) In this section and sections 58, 59 and 60, "the court" means the High Court.
Power of Commis- sion to accept and enforce undertak- ings.
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58. (1) The courtmay, on the application of theCommission, grant an injunction restrainingaperson fromengaging inconduct that constitutes orwould constitute anyof the following:
(a) a contravention of any of the provisions of Part II, III,V,VI orVII of thisAct;
(b) any attempt to contravene such a provision;
(c) aiding, abetting, counselling or procuring any other person to contravene such aprovision;
(d) inducing, or attempting to induce, any other person, whether by threats, promises or otherwise, to contravene such a provision;
(e) being in anywaydirectly or indirectly, knowingly concerned in, or party to, the contraventionbyanyother personof suchaprovision;
(f) conspiringwith any other person to contravene such a provision.
(2) The court may at any time rescind or vary an injunction granted under this section.
(3) Where an application ismade to the court under this section for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the courtmay,
(a) if it is satisfied that the personhas engaged in conduct of that kind, grant an injunction restraining theperson fromengaging inconduct of that kind; or
(b) if in theopinionof the court it is desirable to do so, grant an interim injunction restraining the person fromengaging in conduct of that kind,
whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.
Injunctions.
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(4) Where an application ismade to the court under this section for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the courtmay,
(a) if it appears to the court that, in the event that an injunction is not granted, it is likely that the personwill engage in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or
(b) if in theopinionof the court it is desirable to do so, grant an interim injunction restraining the person fromengaging in conduct of that kind,
whether or not the person has previously engaged in conduct of that kind andwhether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.
59. Where, on the applicationof theCommission, the court is satisfied that a personhas engaged in conduct constituting a contraventionof anyof theprovisions ofPart II, III,V,VIorVII of thisAct, the courtmay,whether or not that person has previously engaged in such conduct,make either or bothof the followingorders:
(a) an order requiring that person, or any other person involved in the contravention, to disclose, at that person's own expense, to the public, or to a particular person or to persons included in a particular class of persons, in such manner as is specified in the order, such information, or information of such kind, as is so specified, being information that is in the possession of the person towhom the order is directed or towhich that person has access;
(b) an order requiring that person, or any other person involved in the contravention, to publish, at that person's own expense, in such manner and at such times as are specified in the order, corrective statements the terms of which are specified in, or are to be determined in accordance with, the order.
Orders to disclose information etc.
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60. (1) Where, in any proceedings under this Part of thisAct, the court finds that a person, whether or not that person is a party to the proceedings, has suffered, or is likely to suffer, loss or damage by conduct of any other person that constitutes orwould constitute
(a) a contravention of anyof the provisions of Part II, III,V,VI orVII of thisAct;
(b) aiding, abetting, counselling,orprocuring thecontraventionof such aprovision;
(c) inducing by threats, promises or otherwise the contravention of such aprovision;
(d) being in anyway directly or indirectly knowingly concerned in, or party to, the contravention by any other person of such a provision; or
(e) conspiringwith any other person to contravene such a provision,
the court may (whether or not it grants an injunction ormakes any other order under this Part of thisAct)make all or anyof the orders referred to in subsection (2).
(2) For the purposes of subsection (1), the court may make the followingorders:
(a) an order declaring the whole or any part of a contract made between the personwho suffered, or is likely to suffer, the loss or damage and the personwho engaged in the conduct referred to in subsection (1), or of a collateral arrangement relating to such a contract, to be void and, if the court thinks fit, to have been void ab initio or at all times on and after such date, before the date on which the order ismade, as is specified in the order;
(b) anorder varying sucha contract or arrangement in such manner as is specified in the order and, if the court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date, before the date onwhich the order ismade, as is so specified;
Other orders.
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(c) an order directing the personwho engaged in the conduct referred to in subsection (1) to refund money or return property to the personwho suffered the loss or damage;
(d) an order directing the personwho engaged in the conduct referred to in subsection (1) to pay to the personwho suffered the loss or damage the amount of the loss or damage;
(e) anorder directing the personwhoengaged in the conduct referred to in subsection (1), at that person's own expense, to repair, or provide parts for, goods that had been supplied by the personwho engaged in the conduct to the personwho suffered, or is likely to suffer, the loss or damage;
(f) an order directing the personwho engaged in the conduct referred to in subsection (1), at that person's own expense, to supply specified services to the personwho suffered, or is likely to suffer, the loss or damage.
(3) Anapplicationunder subsection (1)maybemadeatany timewithin 6 years from the time when the matter giving rise to the application occurred.
(4) An order made under subsection (2)(a) or (b) shall not prevent proceedings being instituted or commenced under this Part of thisAct.
PARTX
MISCELLANEOUS
61. (1) Subject to sections 27, 38 and52, theCommissionmay,with the approval of theMinister,make regulations under this section
(a) generally for carrying thisAct into effect;
(b) prescribing anythingwhich by thisAct is permitted or required to be prescribed; and
Regulations generally.
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(c) except where provision is made to the contrary in this Act, creating summary offences for contraventions of the regulations and, notwithstanding section 19(10) of the Interpretation Act, imposing in respect of conviction of such an offence
(i) in thecaseof an individual, a fineof$10000or imprisonment for a term of 2 years, or both;
(ii) in the case of a person other than an individual, a fine of $100 000.
(2) Regulations under this or any other section are subject to negative resolution.
62. (1) A person who is guilty of an offence under this Act is liable on summary conviction
(a) in the caseof an individual, to a fineof$10000or to imprisonment for a term of 2 years, or to both; or
(b) in the case of a person other than an individual, to a fine of $100 000.
(2) Where a body corporate has been convicted of an offence under this Act, any director or officer of the body corporate who knowingly authorised, permitted or acquiesced in the act or omission that constituted theoffence is alsoguilty of anoffence and is liable on summary conviction to a fine of $25 000 or to imprisonment for a term of 2 years, or to both.
63. (1) Where in a proceeding under this Act, in respect of any conduct engaged in by a body corporate, it is necessary to establish the intentionof the body corporate, it is sufficient to show that a director of the body corporate bywhom the conduct was engaged in had that intention.
(2) Any conduct engaged in on behalf of a body corporate by a director of the body corporate or by any other person at the direction or with the consent or agreement,whether express or implied, of a director of the body corporate shall be deemed, for the purposes of thisAct, to have been engaged in also by the body corporate.
Cap. 1.
Offences.
Bodies corporate.
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SCHEDULE
(Section 8(4))
CONTRACTTERMSWHICHAREUNFAIR IFNOT INDIVIDUALLYNEGOTIATED
1. Any contract term which has the object or effect of
(a) excluding or limiting the legal liability of a supplier in the event of the death of the consumer or personal injury to the latter resulting from an act or omission of that supplier; or
(b) inappropriately excluding or limiting the legal rights of the consumer vis-a-vis the supplier or another party in the event of total or partial non-performance or inadequate performance by the supplier of any of the contractual obligations of the supplier, including the option of off-setting a debt owed to the supplier against any claim which the consumer may have against him; or
(c) making an agreement binding on the consumer whereas provision of services by the supplier is subject to a condition whose realisation depends on his own will alone; or
(d) permitting the supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the supplier where the latter is the party cancelling the contract; or
(e) requiring the consumer to pay a disproportionately high sum in compensa- tion if he fails to fulfil his obligation; or
(f) authorising the supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the supplier to retain the sums paid for services not yet supplied by him where it is the supplier himself who dissolves the contract; or
(g) enabling the supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so; or
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(h) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express his desire not to extend the contract is unreasonably early; or
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract; or
(j) enabling the supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract; or
(k) enabling the supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided; or
(l) providing for the price of goods to be determined at the time of delivery or allowing a supplier to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded; or
(m) giving the supplier the right to determine whether the goods or services supplied by the supplier are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract; or
(n) limiting the supplier's obligation to respect commitments undertaken by his agents, or making his commitments subject to compliance with a particular formality; or
(o) obliging the consumer to fulfil all his obligations where the supplier does not perform his; or
(p) giving the supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter's agreement; or
(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.
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2. Paragraph 1(g) does not apply to a term by which a supplier of financial services reserves the right to terminate unilaterally a contract of indeterminate duration without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties immediately.
3. Paragraph 1(j) does not apply to a term under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties at the earliest opportunity and that the latter are free to dissolve the contract immediately.
4. Paragraph 1(j) does not apply to a term under which a supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract.
5. Sub-paragraphs (g), (j) and (l) of paragraph 1 do not apply to
(a) transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the supplier does not control; or
(b) contracts for the purchase or sale of foreign currency, traveller's cheques or international money orders denominated in foreign currency.
6. Paragraph 1(l) does not apply to price indexation clauses, where lawful, provided that the method by which prices vary is explicitly described.
Exception to para- graph 1(g).
Exception to para- graph 1(j).
Exception to para- graph 1(j).
Exceptions to para- graph 1(g), (j) and (n( �/i>.
Exception to para- graph 1(n( �/i>.