oa Litnet Akademies : 'n Joernaal vir die Geesteswetenskappe, Natuurwetenskappe, Regte en Godsdienswetenskappe - Die afkoelreg in die Nasionale Kredietwet en die Wet op Verbruikersbeskerming : regte
Die National Credit Act 34 van 2005 en die Consumer Protection Act 68 van 2008 het nie Afrikaanse name nie. Daar word in hierdie bydrae deurgaans onderskeidelik daarna verwys as die Nasionale Kredietwet en die Wet op Verbruikersbeskerming.
Die afkoelreg worg baie algemeen erken in verbruikerswetgewing wêreldwyd. Verbruikers word die geleentheid gebied om straffeloos 'n kontrak te beëindig binne 'n sekere periode, gewoonlik binne 'n week of twee, sonder om kontrakbreuk te pleeg. Hierdie besinningsreg word soms beperk tot kontrakte wat in bepaalde omstandighede gesluit is (soos waar die verskaffer van goedere of dienste die verbruiker eerste genader het). In sekere wetgewing word die reg beperk to kontrakte wat buite die normale besigheidsperseel gesluit is. In sommige gevalle laat wetgewing verbruikers selfs toe om 'n kontrak ongekwalifiseerd te beëindig.
Hierdie artikel bied 'n oorsig van die afkoelreg in verskeie Europese lande betreffende verskillende kontrakte en die "algemene beginsels" wat in hierdie verband ontwikkel is.
Die Nasionale Kredietwet bevat 'n afkoelreg wat die reg tot nadenke in die herroepe Wet op Kredietooreeenkomste 75 van 1980 vervang. Die tersaaklike bepalings van die Nasionale Kredietwet word in hierdie artikel ontleed.
Die Wet op Verbruikersbeskerming bevat ook, om dit ligweg te stel, 'n omstrede bepaling wat 'n afkoelreg verleen. Hierdie bepaling word insgelyks in die artikel onder die vergrootglas geplaas.
The cooling-off right in the National Credit Act and the Consumer Protection Act
The cooling-off right is a common occurrence in consumer legislation worldwide. It was created to assist purchasers to whom goods were sold at their homes after an unexpected knock on the door or a telephone call to arrange a visit (so-called door-to-door sales). Sellers expanded this type of selling and marketing to office parties or even an evening trip on a boat arranged for this purpose. The selling of timeshare became particularly popular in this regard. Legislatures in many countries intervened to protect their citizens against high-pressure sales techniques and contracts concluded under certain circumstances. The first country to introduce legislation of this nature was Austria in 1961 and many other countries followed suit. In terms of cooling-off legislation consumers are afforded the right to reconsider their contracts and to cancel them within a certain period of time, normally a week or two, without committing breach of contract. The right is sometimes reserved for contracts concluded under certain circumstances, for instance when the supplier of goods or services approached the consumer first. In some legislation the right is limited to contracts concluded outside normal business premises. In yet a third category of cooling-off rights the consumer has a general unqualified right to terminate the contract. This article provides an overview of the cooling-off right in a variety of contracts in different European countries, and the "general principles" that have been developed and evolved in this regard.
In terms of the repealed Credit Agreements Act 75 of 1980 a credit receiver had the right to cancel the contract within five business days if the contract was concluded at a place other than the credit grantor's business premises and the initiative for the contract emanated from the credit grantor. The consumer was entitled to a refund of any amount already paid. The Credit Agreements Act was replaced by the National Credit Act 34 of 2005, which also contains a cooling-off provision in section 121. This section affords a consumer the right to cancel the contract by means of a written notice within five business days if the contract was concluded at a "location" other than the credit provider's registered business premises. The parties must restore their respective performances. The credit provider is entitled to a reasonable rent for the use of the goods as well as the costs of having to restore the goods to a saleable condition. The right is limited to instalment sales and leases of movable goods as defined in the National Credit Act.
The Consumer Protection Act 68 of 2008 also has a cooling-off provision in section 16 which applies to transactions that do not constitute a credit agreement under the National Credit Act. The Consumer Protection Act applies only to transactions in terms of which the one party is acting in the ordinary course of business (section 5(1)(a) read with the definition of "transaction"). Put differently, the Act does not apply to "private transactions" between people. In terms of the Consumer Protection Act a consumer may rescind a transaction resulting from any "direct marketing" (defined in section 1 of the Act) without reason or penalty, by notice to the supplier in writing, or another recorded manner and form, within five business days after the later of the date on which the transaction or agreement was concluded, or the goods that were the subject of the transaction were delivered to the consumer. The supplier must return any payment received from the consumer in terms of the transaction within 15 business days after receiving notice of the rescission, if no goods had been delivered to the consumer in terms of the transaction, or having received from the consumer any goods supplied in terms of the transaction. The supplier may not attempt to collect any payment in terms of a rescinded transaction except as permitted in terms of section 20(6) of the Act. Subsections 20(5) and (6) allow a supplier to impose a charge upon a consumer who exercises his or her or its cooling-off right for the use of the goods, but this is subject to a number of qualifications. If any goods returned to the supplier are in the original unopened packaging, the supplier may not charge the consumer any amount in respect of the goods. If the goods are in their original condition and repackaged in their original packaging, the supplier may charge the consumer a reasonable amount for use of the goods during the time they were in the consumer's possession, unless they are goods that are ordinarily consumed or depleted by use, and no such consumption or depletion has occurred. The supplier may also charge the consumer for any consumption or depletion of the goods, unless that consumption or depletion is limited to a reasonable amount necessary to determine whether the goods were acceptable to the consumer.
The cooling-off right in the Consumer Protection Act differs in one important aspect from the right in the National Credit Act. A consumer has five business days to terminate the contract as from the date of conclusion of the contract or delivery of the goods, whichever is the later. This is particularly problematic in the case of a sale of immovable goods where registration of transfer has already occurred and a mortgage bond has been registered as security.
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