I’m sure there must have been times when we have, for various reasons, regretted the purchases that we have made but shrugged off our discontent with a sigh.
The story does not have to end in this tone. Especially when the rights and privileges we could enjoy as consumers are clearly set out in the Consumer Protection Act 1999 (the “CPA”).
Rejection of goods can occur for many reasons. One of the most common reason is arguably consumer’s dissatisfaction with the quality of the goods. In this article, we will explore the possibility of rejecting a defective product by a consumer in Malaysia.
Definition of “Consumers”
The definition of “Consumers” under Section 3 of the CPA essentially focuses on consumer contracts which only cover goods or services “acquired for personal, domestic or household purpose, use or consumption”.
Apart from the exclusion of purchases of goods or services being used for commercial reasons (e.g. resupplying them in trade).
Definition of “Goods”
The definition of “Goods” under the CPA only covers tangible goods and some living things, such as animals, fishes, trees, plants and crops. Note that the scope of which does not cover intangible goods (also known as “choses in action”), for instance shares, debentures and money.
The CPA sets out a minimum threshold in respect of the quality of all goods that will be supplied to consumers. Section 32 of the CPA basically states that the goods supplied to consumers for private and / or domestic usage must be of good quality. However, the terminology used and preferred by the CPA is that of “acceptable quality”.
The Court of Appeal case of Puncak Niaga (M) Sdn Bhd v NZ Wheels Sdn Bhd  1 MLJ 27 (“Puncak Niaga”) clarified that Section 32 of the CPA is a statutory prescribed guarantee. In other words, consumers are entitled to expect the goods supplied to them to be of an acceptable quality, irrespective of whether this is expressly covered in the contract of sale between the consumer and the supplier.
“… It cannot be denied that there are statutory implied conditions and/or guarantees that the Mercedes-Benz motor car are of acceptable quality and fit for all the purpose for which goods of the type are commonly supplied. Section 32 of the Consumer Protection Act 1999 enacts as follows…”.
Test for “acceptable quality”
Section32(2) of the CPA sets out the requirements which must be met before the goods are deemed to be of acceptable quality. The test for which is twofold.
Firstly, the goods in question must satisfy all of the following requirements before it can be deemed to be of acceptable quality:-
(i) fit for all the purposes for which goods of the type in question are commonly supplied;
(ii) acceptable in appearance and finish;
(iii) free from minor defects;
(iv) safe; and
(v) durable.Section 32(2)(a) of the CPA 1999
Secondly, the consumer must have been fully acquainted with, i.e. being briefed about and have full knowledge of the state and condition of the goods, including any hidden defects.
The determination of whether a “reasonable consumer” would regard the goods to be “acceptable” would be premised on consideration of the following factors:
(i) the nature of the goods;
(ii) the price
(iii) any statements made about the goods on any packaging or label on the goods;
(iv) any representation made about the goods by the supplier or the manufacturer; and
(v) all other relevant circumstances of the supply of the goods.Section 32(2)(b) of the CPA 1999
Other factors and considerations
After satisfying the two-prong test set out above, a breach of the implied guarantee isn’t automatically established as there are also other factors that must be considered. These factors are fact specific and can be best illustrated through an example.
Fern recently bought a new smartphone (the “Phone”).
Before she bought the Phone, she was informed by the sales representative that there was a dead-pixel on the screen and that the Phone on display is the last unit that they have for this particular model that Fern is interested to buy. Fern bought the display unit.
After a few days of using the Phone, she could not help but kept staring into the dead-pixel whenever the screen lights up. She regretted her purchase. Can she reject the phone because it is arguably not of acceptable quality?
Unfortunately, she could not.
Since the alleged defect had been specifically drawn to her attention prior to the purchase, there is no breach of the said guarantee as she was deemed to have agreed to buying the Phone, knowing that there is a dead-pixel. This is explicitly covered in Section 32(3) and 32(4) of the CPA.
The only difference between the two sub-sections would be on the way in which the purchase was made. If Fern bought the Phone from a physical store and that the said defect was drawn to her attention in person, then Section 32(4) would apply. If Fern bought the Phone online and that the said defect was drawn to her attention via telephone conversation with the seller or otherwise, then the former would apply.
If the Phone had been put through a wash cycle in a washing machine by accident (or for experimental purposes), and subsequently could no longer be switched on (despite using the rice or pasta trick), section 32(5) of the CPA would set in.
In essence, this sub-section prohibits one from claiming a breach of the implied guarantee as to acceptable quality if the goods had been used “in a manner or to an extent which is inconsistent with the manner or extent of use that a reasonable consumer would expect to obtain from the goods”.
If you are wondering whether a consumer can really succeed in rejecting the goods bought premised on it failing to meet the acceptable quality test, the outcome of the Court of Appeal case of Puncak Niaga could perhaps put your concern at ease. In this case, the court held that the plaintiff was entitled to reject the brand new, but defective, luxury Mercedez Benz motor vehicle (the “Car”). This is due to the fact that the Car which could not start on seven separate occasions had amounted to a clear breach of the “acceptable quality” provision of the CPA.
Another instance wherein a breach of Section 32 of the CPA was successfully established is illustrated in the Court of Appeal case of Matang Plastik & Metal Work Industries Sdn Bhd v Daimler Chrysley Malaysia Sdn Bhd & Ors  8 CLJ 998. This case concerns another defective Mercedez Benz motor vehicle wherein the car was sent back to the shop for repair services for five times, before it caught fire.
Whilst it may appear as if I am discouraging my readers to buy luxury cars (which I absolutely deny and deny in its entirety), the aim of this article remains to be a reiteration of the fact that, if you are dissatisfied with your purchase, you are able to, with good reasons and as a matter of last resort, reject goods bought in Malaysia.
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