Claim
Complaints over talisman ploy have been double in 5 years, the National Consumer Affairs Center reported on Jun 16th 2007.[1]
As the report, complaints concerning the purchase of expensive personal good such as good luck seals have been expanding to 1,179 cases in fiscal 2006. The figure was doubled, comparing that of fiscal 2001.
Doorstep selling
Most transactions are conducted by doorstep selling, induced consumer to purchase the expensive seals by the appearance of their homes threatening some disturbance or problems. This kind of sales has been done by some cult parties. Recent unashamed sales promotion seems influenced by the “spiritual boom” created by some popular TV programs.
Solicitation
For instance, a 79-year-old woman purchased 10 seals at a cost of 2.5 million yen from a salesperson and a well-dressed man who carried what she described as a large, official-looking book and claimed to be an “appraiser.” After the “appraiser” expressed concern about the woman’s home, and the pair asked her detailed questions about her situation, she explained she did not get along with her son. They then recommended she purchase various seals, saying, “If you want a peaceful family, press the main seal with all your heart at the first of each month for 10 years.”
Withdrawing cancellation right
A 69-year-old woman of the prefecture claimed to have tried to cancel her purchase within the legal cooling-off period, but withdrew her cancellation when an employee of the firm said he did not know what would happen to her if she did not take steps to improve her luck because the number of strokes in her name’s kanji characters implied misfortune.
Problem
On above mentioned case, the practice that made a consumer withdraw her cancellation is regarded as duress or undue influence. These practices constitute unfair practices and are against good faith. The consumer can claim damage compensation based or tort or breach to perform contract.As another remedy, the consumer can execute her cancellation right again: when a consumer executes the cancellation right, the examination is regarded as other application of new contract. The trader is necessary to deliver the application or contract document stipulating cancellation right again, therefore the consumer can execute her right anytime until the trader hand it to the consumer. The Kobe Summery Court on February 16th 2005 ruled it principle.
Unfair practices ?
The problem is initial canvasses to the consumer. The trader said no unpleasant fact or her misfortune in the case where she did not respond it. The recommendation distorts the consumer’s decision and inducing her to form a contract, which would not be formed otherwise. However、the recommendation is still vague whether it is estimated as false representation/misrepresentation or not.The Consumer Contract Law also prohibits providing assertion in variableness fact in future (sec.4 (1) (ii)). However, the scope of “assertion regarding variableness fact” is interpreted as the economical facts by both the guidance of METI and lower court decision. The fact indicated in question case was not economic fact in such as investment solicitation.The Specific Commercial Practices Law prohibits misrepresentation and it contains the fact of inducement that make a consumer form contract (sec.6 (1) (VI)). The contract forming against the provision is voidable (sec.9-2(1)). The existence of “appraiser” and his recommendation is considered as deceit; therefore the solicitation is regarded as fraud in all circumstances.
Against good morals
As other redress, it is possible to use the notion of “breach of good morals” (civil code, sec.90). In precedent of lower ruling, the Osaka Appeal Court on July 30th, 2004, the definition of “facts variable in future” means the facts: it is consumer profit related property; it does not include the vague fate or destiny. But the court concluded the sales products price was extremely high, thus the contract was void as predatory transaction.
[1] http://www.yomiuri.co.jp/dy/national/20070616TDY03004.htm
