The Act was established to ensure that the benefits of the competition process in Jamaica are unhindered by anti-competitive activity. The objectives of the Act are to:
The Act applies to all persons and businesses operating in Jamaica with, some exceptions. The following are some of the groupings that fall outside of the Act:-
It could be said that the Act is to businesses what rules are to sports. The aim in any sport is to win and to be the champion. To ensure that the best wins, there are rules to ensure fair play. Runners in a race have to start at the same time and run the same distance; athletes are not allowed to take steroids; foul play is forbidden in all sports; and team sports have the same number of players on each side.
Similarly, the aim in business is to be better than the competitors; win large market shares; and make the highest profits possible. The best businesses survive while inefficient ones die. The Act ensures fair play among businesses as they fiercely compete against one another. "Foul play" such as anti-competitive and abusive behaviour is not allowed.
The Act was passed by Parliament in March 1993.
Many other jurisdictions also have fair competition legislation. Examples include the European Economic Community (EEC) and their member countries such as the United Kingdom, Germany, France, Ireland and Italy; the United States, Chile, Canada, Australia, New Zealand, Mexico, Costa Rica and South Africa.
The Fair Trading Commission administers the Act. The Commission consists of up to five Commissioners, who are appointed by the Minister of Industry, Commerce and Technology, and staff who are headed by the Executive Director. The staff consists of lawyers, economists, research officers, complaints officers and administrative and support staff.
The Commission has the power to carry out investigations in relation to the conduct of business in Jamaica to determine if any enterprise is engaging in practices that are in contravention of the Act. Such investigations may be self-initiated by the Commission or be carried out following a complaint. The Commission has the power to obtain any information that it considers necessary for the purposes of the investigation. All investigations are carried out by the staff of the Commission.
In addition, the Commissioners have the power to summon and examine witnesses; to call for and examine documents; and to administer oaths. Where they find that an arrangement has contravened Sections 17, 20 or 33 of the Act, they may prohibit the arrangement. For prohibitions under Sections 20 and 33, they may also direct the enterprise concerned to take steps that are necessary to overcome any anti-competitive effects resulting from the arrangement.
The Commission can also take to Court any business or individual who has been found guilty of anti-competitive practice and has failed to take corrective measures, after being instructed by the Commissioners.
Any individual or business that is dissatisfied with a finding of the Commission may appeal through the Courts within fifteen days of the finding.
Consumers are responsible for finding out what their rights are and exercising those rights. They may protect their own interests by recognizing, collecting evidence of, and reporting, any breaches of the Act to the Fair Trading Commission. Not all matters fall under the Act. In such cases, consumers should take their complaints to the Consumer Affairs Commission. Most importantly, consumers should "vote with their feet": they should not continue to support merchants who offer poor quality products, charge high prices, fail to honour their obligations or provide poor service. Instead, they should take their custom to merchants who provide top quality products at competitive prices. Such action by consumers is the best way to ensure the best outcome for consumers.
If, after receiving a complaint from an aggrieved consumer, the FTC finds strong evidence that a merchant has breached the FCA, it will try to negotiate between the two parties. This settlement may be monetary or non-monetary. In the event that a settlement cannot be reached, the FTC will take the case to court. Fines that are levied by the courts in cases brought by the FTC will be paid to the government and not to the consumer (or to the FTC). For the consumer to receive compensation through the court system, he may exercise his private rights to action and take legal action against the merchant under Section 48 of the FCA. The consumer may need to seek the assistance of a private attorney to undertake this course of action.
A warranty is an undertaking given to a purchaser by a seller that a product is reliable and free from defects. The seller further undertakes that he will, without charge, repair or replace defective parts or replace the entire product if the product turns out to be defective within a given period. Certain specified conditions may have to be met before the warranty is enforceable.
Warranties on vehicles are dependent on the Expressed Warranty given to the consumer. Ministry Paper (19) set out by the Ministry of Industry, Commerce and Technology stipulates that the warranty period of a used vehicle should be 90 days (3 months) or 5500 km, depending on which occurs first. Warranties on new cars, however, are for at least a year, but may be more, depending on the dealer.
Under the Act, the manufacturer's warranty supercedes. Section 37 (4) of the Act states that where a representation on an article offered for sale is made by a person outside of Jamaica, the representation shall be deemed to be made by the person who imported the article. Therefore if a manufacturer makes a representation in the warranty on an article, it becomes the importer's duty to honour the manufacturer's warranty.
Under the Sale of Goods Act a merchant must provide a refund, or a replacement when it is clear that the item cannot be repaired. However, the number of times allowed for repairs before the item should be replaced is determined on a case by case basis. It may be possible that the merchant might have missed the real problem in attempting to repair the item on previous attempts, but shows proof that he will be able to make the necessary repairs to the satisfaction of the customer, if a further opportunity to do so is allowed. Whether or not the merchant would be allowed to make that attempt is based on the facts of each case.
A refund policy should include the following information:
The Law relating to the Sale of Goods stipulates that all goods which are offered for sale must be of a merchantable quality. This means that the quality must be of an acceptable standard. If the consumer purchases goods that fail to meet this standard, he is entitled, in certain circumstances, to reject the goods and demand full refund. A merchant's refund policy must therefore be established in accordance with the said Law, and any Policy which states "No Refund" without more, is by its very nature, in breach of the Sale of Goods Act.
The Act does not specify the form that a refund should take. As such, the answer to all the questions above is determined solely by the refund policy of the merchant at the store from which the item was bought. The decision on what is deemed suitable for returns as well as the type of refund to be given (for example. cash or credit note) is not specified by the Act. Each individual merchant will have his own policy, which might or might not be similar to another merchant's policy and it is this policy which is applicable to purchases, returns and refunds. In accordance to Section 37(1), however, the merchant must make this information known to consumers. A merchants refund policy should therefore be placed prominently in the store, where consumers are able to access the information before making his purchase.
For their own protection, consumers should ensure they get a receipt. It is the best and safest way by which a consumer can provide proof of purchase, as well as date of purchase. Goods that can be bought in stores are not usually exclusive to any particular store. Identical items can be found in a number of stores. The consumer will therefore need to prove that a particular item was bought in a particular store. Further, some refund policies stipulate the amount of time within which the merchants are willing to take products back. They will need to ascertain relevant information from a receipt. It is important to have tangible proof, rather than to have a battle about whether or not you did make your purchase from a particular store on a particular date.
This principle refers to the practice of selling items for which no refund or warranty is provided. These items are usually faulty, defective or inferior, and as such, are being sold in their present condition and usually at discounted prices. Further, the seller is not expected to transport such an item to the buyer; transporting the item is the buyer's responsibility. That is, the item is sold "as is where is". The buyer is usually made aware, and has a duty to make himself aware, of what defects exist, and should be able to make a decision as to whether the reduced price compensates for any deficiency which the item might have. A used car dealer may, for example, offer a very old, defective car "as is where is". The buyer will not receive a warranty, or be entitled to return this vehicle.
"Caveat emptor" is a Latin expression, meaning "let the buyer beware". It is the principle that fixes the buyer with a responsibility for assessing the quality of a good before buying. The potential purchaser is being warned that the good being purchased might not satisfy the terms of the contract under which it is being purchased. Under this principle, the purchaser is responsible for protecting himself in the transaction. Smart consumers know their rights and enforce them. It remains in the best interest of every consumer to learn the facts about his transaction and ask questions if he is unsure about the merchants' policies or about their own rights. Information is the best defence against purchasing defective products or falling victim to fraudulent practices.
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