If your furniture is damaged when you move house, you have certain rights, whether you insured your property for the move or not. It is indeed the duty of the moving company to ensure that your furniture get to the other side in one piece.
For a long time, consumers who wanted to complain about damage to their things during a move were asked if they insured their property for the move. If you did not, the answer was short: we cannot help you.
The good news is that the Consumer Goods and Services Ombudsman does not agree at all. After a consumer complained at her office that a moving company offered him R700 after most of his furniture was damaged during the move while the damage amounted to R10 000, the company said in its response that it encourages customers to insure the move.
The company offered R700 to repair the furniture because it was responsible for wrapping and packing the furniture. However, the Ombudsman said it is the duty of the moving company to ensure your furniture is not damaged, as determined by sections 65 and 51 of the Consumer Protection Act (CPA).
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Suppliers’ duty to hold and account for your property
According to section 65, a supplier who has in his possession any prepayment, deposit, membership fee, or other money, or any other property belonging to a consumer, the supplier must:
- not treat your property as its own;
- when handling, safeguarding and using your property, exercise the degree of care, diligence and skill that can reasonably be expected of someone responsible for managing any property belonging to someone else; and
- remember he is liable to the owner for any loss resulting from a failure to look after it properly.
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Prohibited terms and conditions
Section 51, that identifies prohibited transactions, agreements, terms and conditions, determines that a company is not allowed to use terms or conditions in a transaction or agreement if:
- it directly or indirectly claims to waive or deprive a consumer of a right in terms of the CPA, avoid a supplier’s obligation or duty in terms of the CPA or set aside or override the effect of any provision of the CPA;
- it authorises the supplier to do anything unlawful in terms of the CPA or fail to do anything that is required in terms of the CPA;
- it claims to limit or exempt a supplier of goods or services from liability for any loss directly or indirectly attributable to the gross negligence of the supplier or anyone acting for or controlled by the supplier, constitute an assumption of risk or liability by the consumer for a loss; or
- it imposes an obligation on a consumer to pay for damage to, or otherwise assume the risk.
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What the Ombudsman said
The Ombudsman referred to section 65 in her finding and found that the moving company did not exercise the duty of care when handling the consumer’s furniture. Although she noted that the moving company encouraged customers to insure their property for the move, she said it does not remove the company’s liability in terms of the CPA.
Referring to section 51, she said it is clear that suppliers are not allowed to contract themselves out of the provisions of the CPA by concluding an agreement that does not adhere to the aims of the CPA to protect consumers.
In addition, suppliers are not allowed to interfere with the rights of consumers according to the CPA and are not allowed to include prohibited terms and conditions in an agreement that limits the supplier’s duties and obligations in terms of the act or exempt the company from being responsible for any loss or damage if it is negligent.
Therefore, the Ombudsman told the moving company to pay the consumer a fair amount for the damage to his furniture. The moving company offered R6 000, which the consumer accepted.