Sale of Goods Ordinance

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How to define reasonable standard? Schedule 2 of the Control of Exemption Clauses Ordinance provides the following guidelines:

- the strength of the bargaining positions of the parties relative to each other,taking into account (among other things) alternative means by which the customer's requirements could have been met;

- whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;

- whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);

- where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;

- whether the goods were manufactured, processed or adapted to the special order

of the customer.

http://www.hklii.hk/eng/hk/legis/ord/71/sch2.html

B) Unfair Contract Terms

The Unconscionable Contracts Ordinance (Cap. 458) only applies to a contract for the sale of goods or supply of services in which one of the contracting parties is dealing as a consumer. If the court find out that the contract or any part thereof was unconscionable (unfair or irrational), the court will follow to section 5 of the Unconscionable Contracts Ordinance to refuse the contract or enforce the remainder of the contract without the unconscionable part; or limit application of in order to avoid any unconscionable result.

A contract or term is unconscionable in accordance with the Unconscionable Contracts Ordinance (Cap. 458 of the Laws of Hong Kong), the court should consider the following points:

- the relative strengths of the bargaining positions of the consumer and the other party;

- whether, as a result of conduct engaged in by the other party, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the other party;

- whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services;

- whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the other party or a person acting on behalf of the other party in relation to the supply or possible supply of the good or services; and

- the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the other party.

http://www.hklii.hk/eng/hk/legis/ord/458/s6.html

Reference

Hong Kong Ordinances

http://www.hklii.hk/chi/