How is the CPA going?

[sterne.law@gmail.com]

Already about 100 complaints a day coming through, quite as start.

Intepretation continues to be debated. Considering large firms with think tanks plus representations in formulation stage still have questions that are unanswered makes for an interesting few early stages, particulalry the property sector.

Part of the problem is how the CPA has entered the realm of common law principles and other fundamental areas and simply changed it, as it stands. This is probably what is making it difficult to intepret. Examples are unjustified enrichment.
in terms of direct marketing, your comment at the braai that you can or do do something, is direct marketing and therefore if the person uses your services gets the protetcion of the direct marketing sections.

[Dave A]

I hope they're going to think carefully before setting precedents. The risk for really harmful unintended consequences is simply huge.

The customer may be king, but he can also be an abusive beast - and most often has far greater freedom of choice and power of discretion than the supplier. He can always say "no" - an option not always available to the supplier.

[sterne.law@gmail.com]

Heres an interesting One.

An attorney at a braai says he does commercial law. A week later you approach him with a dilemma. He furbishes a written opinion. With in 5 days you return it and claim direct marketing and the right to return the goods.
Normally unjustified enrichment would allow the attorney or person to claim from you. But apiece of legislation allows you so it cant be unjustified now can it?

Another interesting one -
You purchase a property off plan. It gets built, transfer takes place and you move in. You then claim it does not look like the picture or sample unit and return it, as per CPA. Now what?
Transfer fees are paid and it belongs to the buyer. Becuase he is returning it transfer needs to be effected again to the seller. HUH!!! Then of course on next sale, transfer fees again.

[Dave A]

This is why the precedents are so important.

As I understand it, at this point these arguments are still speculative.

[IanF]

What about services like design, you produce a proof according to the brief there are a few requested alterations which are done then it is rejected. Now I always request a deposit before we start, and have refunded only once I couldn't be bothered arguing, but then you refuse to do any more work for them.
So when you sell time do you specify you are selling time?,

[sterne.law@gmail.com]

Now this was the exact scenario which remainsn unanswered. It was a gathering of mainly attorneys, the speaker is a commercial attorney and worked on the CPA with a think tank at large reputable firm.
The scenario is the attorney at braai, gives opinion and then returned. Your design scenario constitutes pretty the same scenario.
In essence the client returns the opinion and says no thanks - but of course they do have their answer. Common law allowe dfor a remedy via unjustified enrichment. But if a piece of legislation says you can do something it cant be unjustified. The CPA also specifically allows for the development of the common law in order to achieve purposes. If their is a clash of legislations the intepretations is the one most favourable to the consumer. This all seems to point to the service provider being screwed.
My defence is that you cant give me back something that I already have(my idea and intellect) and by the same token the consumer cant give back what he still has(the intellect) thus there is no cause for action.
Your design issue has the same connotations. Of course copyright and intelectual property laws may give a remedy where they make use of the design. Being a slightly more physical piece of intellect than an opinion one can watch out for it to appear but at what cost. Furthermore, if they do use it you cant use the CPA and have to revert to the normal, longer and more expensive legal routes with the added disadvantage that the customer may not have money to refund you. (It is also unclear as to if a supplier is going to contest a claim, do they first have to pay an then make claim, or can the payment and those processes be stayed pending any action in consumer commision or tribunals) I think some more digging into the arbitration act will give some guideline to the procedures.

Also remember that the return of 5 days, no questions asked is related to where direct marketing has occurred. BUT this obviously covers a vast area. Web sites, blogs, comments, articles are all direct marketing!!! (What will need to be established is what is a reasonable time span from the marketing to when a consumer acts there upon for the consumer to use it as a defence)

[Dave A]

The worst of it is the right to return period is 5 days after order or receipt of the goods/service, whichever is the later. And it's not qualified which is where I see the big problems coming, especially when it comes to professional advice/opinion. So now they get advice they don't like (but it is correct nonetheless)?

What would make sense is if it was qualified - 5 days after order as a cooling off period and 5 days after receipt if not as advertised/fit for purpose/substandard.

...is related to where direct marketing has occurred. BUT this obviously covers a vast area. Web sites, blogs, comments, articles are all direct marketing!!!

Surely not - the reader has to actively go to the website, or blog to read the message
How is the content of a website, blog or article directory any different to the content of a newspaper? Or is the content of a newspaper "direct marketing" too?

[sterne.law@gmail.com]

Perhaps a few sections involved causing confusion - there is direct marketing and product liability issues.

There is a difference between marketing a specific and a generic advert.

Example, ABC stores advertises themselves - no problem but if they advertise XYZ toothpaste then any sales related to XYC toothpaste are subject to the direct marketing sections (again no clarity on what time period. If I go and buy after 3 months it could be as a result of the advert)
This is not neccessarily covered by the web site issue (Direct marketing defined as to approach by person, mail or electronic communications. Definition also includes ..in relation to any goods, hence the store advert vs a product advert)

To further substantiate the ramifications - returning to the lawyers opinion. If I give you an opinion and you forward it or some else acts on it, I become liable. Subsequently such things should be formatted in a manner that cant be altered and the practice now, it seems, will be to address the opinion to a specific client and at a specific point of time, and disclaim any liability for any other person making use therof. (This is not in terms of direct marketing but product liability - web sites/blog disclaimers become important)

I certainly want to explore the direct marketing issue in term sof wbe sites this further. Direct marketing refers to electronic communication which must cover web sites/blogs.

In terms of the 5 days and qualification -
a) agreement concluded - normal contractual principles
b) delivery - straight forward enough

[AndyD]

How is the content of a website, blog or article directory any different to the content of a newspaper? Or is the content of a newspaper "direct marketing" too?

I think the difference is that with SEO and the associated manipulation of rankings there would, at a push, be an argument that a website or blog could be classed as direct marketing where a newspaper maybe not.

[Martinco]

What about this scenario ...............My friend has a ready mix concrete business and I asked him about the 5 day issue. He said "Sure, he will take the concrete back provided the customer delivers the stuff to his premises." ! Catch 22.

[sterne.law@gmail.com]

What about this scenario ...............My friend has a ready mix concrete business and I asked him about the 5 day issue. He said "Sure, he will take the concrete back provided the customer delivers the stuff to his premises." ! Catch 22.

If the consumer is cancelling the contract due to direct marketing - return of goods is at consumer expense and risk - so Mr Concrete is in a good position.
All other returns are at supplier risk and expense.

[sterne.law@gmail.com]

Just on returns -
It is only where the purchase was due to direct marketing that the return is based on nothing but that.
Other returns require some defect, in various forms and guises.
I think this is an important distinction. Seems a lareg amount of people(consumers) think that they can just return anything without penalty.

[IanF]

Since this revolves around "direct marketing" "means to approach a person, either in person or by mail or by electronic communication..."
Does this cover every sale or will there be exclusions from this?

[sterne.law@gmail.com]

I am not aware of any exclusions as to sales(there are exclusions by token of parties to whom the act or sections are not applciable)
The key word in the direct marketing definition is approach .
The methods listed in the definition all require a specific action - to fax, sms. email etc, so my feeling is that a web site is not in this same group. Of course if I encourage you or send you to my web site (link as signature?) this would seem to be an actual action, then a direct approach.

Handing out a business card? Approaching?

[Dave A]

If the consumer is cancelling the contract due to direct marketing - return of goods is at consumer expense and risk

Now that is very useful to know.