The consumer and fair exchange : a theoretical appraisal of the Malawi Hire-Purchase Act
Unfair exchange is a problem which the consumer who acquires goods under credit agreement may face. The goods may be misdescribed by the supplier or he may charge an excessive rate of interest for the credit allowance made to the consumer or the supplier may insert into the credit agreement provisions which protect him at the expense of the consumer or the supplier may over-secure his interest under the agreement. The principal law which governs credit agreements in Malawi is the Hire-Purchase Act. This Act provides the basic content and form of a credit agreement and prohibits the supplier to insert certain clauses in the agreement and to engage in certain forms of conduct in relation to the agreement. This thesis analyses the Act and argues that although it seeks to ensure that the consumer gets a fair exchange from the agreement, it has a number of weaknesses which undermine achievement of that objective. First, statements made about goods and credit supplied under the agreement, the quality of those goods and sane types of security agreement which may be made in respect of the credit agreement are left to be regulated by other sources of law which are not primarily concerned with consumer protection. Secondly, the form of control created by the Act does not seem to be based on a clear and consistent policy. And third, enforcement of the Act is left to the parties to the credit agreement. The thesis is divided into nine chapters. Chapter 1 is the introduction which outlines issues dealt with in the thesis. The second chapter examines bases upon which common law controls unfair contracts and unfair contract provisions. Chapter three discusses the law which governs the quality of goods supplied under a credit agreement. Chapter 4 looks at provisions of the Hire-Purchase Act which govern credit. The fifth chapter deals with the law relating to security agreements which may be made in respect of credit agreements. Chapter G analyses all the regulatory provisions of the Hire-Purchase Act. Chapters seven and eight explore the possibility of public control of unfair exchange in these agreements. The former discusses how criminal sanctions could be used to re-enforce compliance with standards created by the Act while the latter shows that the whole regime could be made more effective by the introduction of a system of registration of traders who supply goods on credit. Chapter nine sums up all the findings of the thesis.