We’ve all seen the signs when we walk into shops selling breakable items, some larger than others, some more creatively worded than others, all essentially meaning to say the same thing – if you accidentally break an item, you will have to pay for it!
What happens if a customer refuses to pay for the broken item nonetheless despite there being clear signs plastered all around the shop notifying him that he has to? What legal recourse does the shop have to claim the purchase price of the item from the customer?
The shop may sue the customer for breach of contract, but it would be hard to argue that there existed an agreement for the purchase of the item in the first place! The shop could argue that an agreement existed when the customer walked into the shop and agreed to pay for any item he breaks, but that would be near impossible to prove in court – I would think that a requirement for customers to sign an agreement to such an effect before walking into a shop would deter customers from even stepping in! Thus, if there is no ‘meeting of the minds’, a contract – whether oral or written – cannot be said to be in existence (Deutsche Bank (M) Bhd v MBf Holdings Bhd & Anor [2015] 6 MLJ 310).
The shop could sue the customer under tort where the existence of a contract between parties fails to be proven. Here, the shop would have to prove that the customer owes the shop a duty of care to ensure to not break anything in the shop, and in being negligent, he breached his duty of care, had broken the item, thereby causing loss to the shop. Assuming the shop succeeds in proving the above and the shop is not contributorily negligent for the incident, the shop would be able to claim for its losses as if the item was not broken in the first place (not as if the customer had bought the item – note the difference), meaning the customer would be liable to pay the shop the cost price of the broken item (not the retail price displayed) (Pan Malaysian Pools Sdn Bhd v Kwan Tat Thai & Anor and other appeals [2018] 4 MLJ 461).
The shop could always make a police report, as the customer might be guilty of the offence of ‘Mischief’ as per s.425 of the Penal Code if he had, “with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or any person, causes the destruction of any property, or any such change in any property, or in the situation thereof, as destroys or diminishes its value or utility, or affects it injuriously”. Whilst this route may not result in the shop being compensated for its losses, it may cause the customer a lot of inconvenience and a criminal record if convicted!
So next time you walk into a shop, be very careful how you handle the items sold in the shop.
About the Author
Kenneth is a Founding Partner of XK Law. He graduated with honours from the University of London, United Kingdom. He is driven by a passion to give voice to the voiceless and does this through his practice.
