The effect of the consumer protection act on contractual freedom

Abstract

The purpose of this mini-dissertation is to determine whether and to what extent contractual freedom are infringed and/or obviated by the Consumer Protection Act and to establish if the limitation created by the CPA is the answer to the problem of inequality of bargaining powers of contracting parties. A fundamental concept of law of contract is freedom of contract: the idea that the parties are free to decide whether or not to contract; with whom to contract; and on what terms to contract. Despite the fact that freedom of contract is deeply engrained in our society it has a rather shaky foundation based on multiple assumptions and when objectively viewed the truth is that when making a contract there is always social and economical pressure that is implied in negotiating each and every contract. Having regard to the above it can be said that realistically speaking the fundamental concept of equality in the bargaining powers of contacting parties is the exception rather than the rule and that this unequal position has without a doubt undermined the true notion of freedom of contract. Our Common law has developed many rules and principles to curb this unfairness in the making of contracts. The CPA has praiseworthy intentions such as the promotion of fair business practice and the protection of the vulnerable from exploitation and unsafe and hazardous goods and/or products. Despite the good intentions of the CPA and every other aspect that might have an influence the problem remains enforcement of these principles. Thus despite the infringement of contractual freedom by the regulations of the CPA it appears not to be the answer to the problem of inequality in the bargaining power of parties negotiating a contract.