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What is the legality of the ‘goods once sold’ phrase?
At the end of October last year, Racheal Ayebare went shopping in downtown Kampala and it is from there that she bought a pair of batteries and a matching charger from an electronics shop.
The salesperson had given her a hard-to-resist pitch. It was the perfect music she had sought to hear.
“I wanted original Sony batteries which I could use overtime. They were different from the grey ones I know but the vendor told me they just looked different but genuine. So I paid,” she says.
After reaching home, Ayebare charged the batteries for the required 48 hours before putting them in the speed lite.
However, to her shock, the light could not switch on, which forced “me to go back to the shop to request for another light or a refund of my money”.
“To my surprise they told me they could not [refund or replace] because ‘goods once sold are not returnable,” she says, with a frown.
Ayebare, who does photography, had spent Shs80,000 on the charger and the pair of batteries, which could hardly work.
“I had sacrificed to buy the light. It was very annoying and upto now I wonder why someone would sell something that they are well aware it is fake, later alone does not work,” she says.
Ayebare, just like many Ugandans, are not alien to fake goods that litter the market.
Eighty per cent of Ugandans have bought a fake product and have not been compensated or refunded because the goods they have bought are not receipted.
However, even those that are receipted have an inscription - “goods once sold are not returnable” – which to some, means that once the product has left the shop, they have no responsibility even when they fail to work.
According to Simon Peter Sekidde, the managing partner of Sekidde Associated Advocates, the phrase is used to reduce liability on the part of the trader.
“The phrase is governed under the Sale of Goods Act that stipulates how trade is done,” he says.
According to Sekidde, whereas many customers will not return defective goods, they have the right to return goods even when they have a receipt inscribed with the “good once sold are not returnable” phrase.
“If you say goods once sold are not returnable, what goods are they? Are they perishable for instance, if you buy tomatoes and you want to return them when they are rotten because they did not serve the purpose of the hotel, then I believe that clause can work,” Sekidde explains.
On who should determine how the conflict is resolved, Sekidde recommends negotiation in order to “come to a consensus”.
“The trader might accept to return the money or replace the goods but of the same value,” he says.
For commercial lawyer Andrew Luba, the phrase solely protects traders and refrains consumers from making claims in cases where goods are defective or do not serve their purpose.
In more formal transactions, he says, under freedom of contract, parties are free to transact as they please, which allows the inclusion of such terms.
However, should such a case make it to court, its concern will be whether each party carried out its obligations. “Whatever terms you include, they will not care about whether the bargain was fair or not,” Luba says, however, he argues that the “goods once sold are not returnable” phrase in unfair especially today when it presents a clash between business laws.
“You find that the Sale of Goods Act says a seller has to sell goods of merchantable quality and the freedom of contract says if you signed the contract, you are bound to it,” he explains the clash.
However, he stresses the importance of keenness while deciding to sign a contract with such a clause.
For informal contracts that are used by the ordinary Ugandan consumer, traders use this clause in error.
“It is arguable in court but most people do not have the time. If you include that clause on a receipt, a receipt does not represent a contract so it would be different if you include it in a contract. But you get a receipt after agreeing,” he says.
Is the “goods once sold ..” phrase legal?
According to Luba, it is hard to get redress for a consumer who transacts verbally because courts rule based on facts and evidence. In other scenarios where these clauses are, courts ease the process by ascertaining that the buyer was informed of the clause.
Luba points out that such clauses are unfair because of the mundane manner in which Ugandan consumer protection laws work.
“As of now, there is no protection because the law is not in place,” he says, adding that the Sale of Goods Act is tricky to use because if you go over the counter to buy, you are entering a verbal contract.
If I inquire about shoes you sell and it is Shs50,000 a pair, he says, your response is an offer and if you pay, the contract is over.
Therefore, he adds, a receipt that is inscribed with the “goods once sold are not returnable” phrase is null and void because it was not part of the discussion. “It does not apply to simple transactions because it envisages a situation where there is a written contract,” he says.
But other legal minds argue that the “fit for purpose” assertion can be examined in court if you can prove that the goods sold to you did not meet the purpose for which the seller claimed.
For instance, a radio purchased could not actually do what it must do. This might be looked at as a flaw and the phrasing on the receipt minght not hold in this case.
