LETTERS: Early this month, Malaysian consumers were shocked by the RM1,196.80 price for a dish of siakap fish weighing 7.48kg, which was eaten by seven people in Langkawi.
The advice to consumers, including from consumer groups and the Domestic Trade and Consumers Affairs Ministry, is to check the price and request for information before ordering.
This is a good pre-emptive measure to prevent unfair pricing before "the contract" is entered into. However, there is not even a word on what remedies are available if disputes arise.
The ministry has been quick in taking action to investigate the matter under the Price Control and Anti-Profiteering Act 2011.
Nevertheless, since siakap is not governed by the Act, hence, there is no violation. The Price Control and Anti-Profiteering Act 2011 is unable to provide any remedy for consumers in terms of unfair pricing.
What then is the course of action available for consumers? Is it too bad that after you enter into a bad bargain, nothing can be done about it?
Post-incident, we should ask what are the remedies available instead of giving advice on hindsight and putting the blame on the ignorance of consumers.
The argument of the restaurant operator was that despite repeated explanation to the customer that the 7.48kg siakap fish was not for sale, the customer had insisted on ordering the fish.
However, this was denied by the customer. The issue here clearly lies on contract law on the disputed facts of contractual terms that the parties had agreed upon.
The issue of whether there was any misrepresentation of the restaurant, or by the customer, is a question of fact and law. In the event of misrepresentation, the innocent party can elect to terminate the contract and claims for restitution.
On the other hand, if there is no misrepresentation, I would advise the consumer to pay the agreed price on the bill, but leave out the disputed item and request the restaurant to initiate a small claims action in court for money due and owing.
This means that the burden of proving the siakap is worth RM1,196.80 rests upon the restaurant operator rather than the consumer.
In any event, the restaurant would not be worse off, since money due and owing is a clear-cut remedy available for breach of contract.
Note that the consumer had agreed to pay the price too, as long as it is proven to the satisfaction of the court that the siakap is worth that price.
On the issue of consumer protection, it is unlikely that the Consumer Claims Tribunal under the ministry would be of any help, as the tribunal views price in a very subjective manner. So long as the price is indicated, the tribunal will not entertain an argument about a bad bargain.
However, it is clearly provided in the Consumer Protection Act 1999 Part IIIA, section 24C that "a contract or a term of a contract is procedurally unfair if it has resulted in an unjust advantage to the supplier or unjust disadvantage to the consumer on account of the conduct of the supplier or the manner in which or circumstances under which the contract or the term of the contract has been entered into, or has been arrived at by the consumer and supplier".
The siakap controversy is an opportunity to test the Consumer Protection Act 1999 on unfair contract terms under Part IIIA of the Act.
However, with business, economy and tourism interests in mind, and lack of consumer protection as a core issue, to what extent the law is able protect the consumer remains a question.
DR ONG TZE CHIN
Senior lecturer
Faculty of Law,
Universiti Malaya
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times
