Legislative Intervention in Exclusionary Liabilities in Consumer Contracts in Malaysia

The legal approach of common law tradition is no longer relevant to protect consumers’ contractual rights due to various lifestyles and e-market evolutions that are more complicated to be interpreted legally. The differences of judicial interpretation which have been highlighted in many local case-laws seemed to be inconsistent and therefore need critical appraisal for the sake of maintaining contractual justice. The paternalistic approach in consumer protection is becoming very significant with the rise of consumerism in many countries. The legislative interventions are introduced to control and interfere with market imperfection in the noble cause of upholding and empowering consumers in trade. However, the absence of specific legislative mechanism in providing sufficient protections in Malaysia has led to widespread abuses of consumer rights and interests in trade. The Contracts Act 1950 and Sale of Goods Act 1957 are archaic pieces of legislation whereas Consumer Protection Act 1999 lacks adequate instrument to restrain massive unfair contractual terms. The loopholes of existing legislations which originated from the doctrine of freedom of contract and market individualism reaffirm the assumption that legislations in Malaysia do contribute to the abuse of consumers’ legal rights through rampant practice of exclusion clauses. By adopting the content analysis methodology, this article analyses the legislative treatment of regulating exclusion clauses in consumer contracts in Malaysia and how far the consumer protection regime is able to overcome the problems of exclusion clauses in Malaysia. Thus, the recent statutory development in the control of unfair terms in consumer contracts in Malaysia is seen as the beginning of a new era for consumer contracts. Enacting specific laws to control the use of exclusion clauses will be the best solution to this problem in Malaysia.