Recent Tokushima District Court approved the plaintiff damage claim concerning excessive kimono sales case on February 28, 2007. [1]The plaintiff was 64 years old house wife and pensioner. While she purchased various goods of lump sum of 59,787,728 yen during 1.5 years, the purchasing of 27,470,823 yen was kimono transaction from the defendant shop. She used loan from co-defendant credit company in her some transaction from the shop
Claim
She was suffered from manic depression for a long time. During this trading period, she was with mental disturbance caused hepatic encephalopathy and her some strange behaviors were watched by families and neighbors. The claimant sued damage to the defendants: the defendant shop noticed or was likely to notice her vulnerability suffered from mental infirmity: notwithstanding the defendant shop sold excessive amount of kimono taking advantage of her vulnerable condition: the practice against the public moral.
Decision
The court said that whilst the claimant purchasing from the defendant shop was abnormal objectively, there was not efficient proof for the defendants to perceive the abnormality in her behavior. However the court concluded that the sales by the defendant shop was regarded as the excessive sales against public moral and the shop had to pay damages equivalent to the amount of her purchasing beyond 20,000,000 yen:In generally, the traders have a duty not to sell excessive sales as well as a credit company connected with the trader has an obligation not to loan excessively. whether the sales or loan was excessive would be considered in a view point of the customer’s character such as occupation, financial status and age; in this alleged case, the transaction beyond lump sum of 20,000,000 yen should be against public moral and therefore the sales by the sales practice of the defendant shop was illegal as well as the loan solicitation of the connected defendant credit company; thus the defendants have to pay damage compensation the claimant.
Comment
Although this ruling ordered the defendants to pay compensation, the damage was limited by the portion equivalent to sum beyond 20,000,000 yen and the court could not reveal the rationale and justification of the decision; therefore, the ruling is not persuasive. The ruling indicated that the basis of the prohibition of excessive sales was on the consumer protection regulation of Tokusima prefecture. The prefectural rule states the principle of the suitability rule. While the court said that the element judging overindulgence of transaction is the consumer’s age, job and the financial status, it is not sufficient. It is necessary to take account of the purpose or intention of the transaction in case that the suitability should be considered. Kimono is usually expensive and is not purchased frequently in usual consumers. Therefore, except the person who need to purchase frequently for his work, the shop has to confirm a purchaser’s purpose or intention of getting it if the purchasing repeat in short period; if she cannot show the certain purpose in those transaction, the seller must doubt the purchasing might be caused by mental infirmity and examine it as his duty that is required by the suitability principle. If the seller neglect his confirmation duty and continues his sales promotion, he should pay damage compensation against the suitability rule.
[1] http://www.hyogoben.or.jp/hanrei/pdf/070228-t.pdf
