I'm not sure if there's any 'wiggle room' - Consumer Rights Act 2015
Unfair contract terms
The CRA incorporates the rules relating to unfair contract terms previously found in the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999. As in the other areas discussed above, the Act both consolidates and extends the existing protections.
The test for unfairness remains effectively the same. A term is unfair if "contrary to the requirements of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer". An unfair term cannot be enforced against a consumer although the consumer can rely on it if, in the circumstances, it is to his advantage.
As noted above, the CRA also extends the rules on enforceability of unfair contract terms to cover notices to the extent that they relate to the parties' rights and obligations under the contract or purport to exclude or limit the trader's liability.
The most important changes relate to transparency and prominence of contract terms:-
- First, all written terms of a consumer contract must be transparent (i.e. "expressed in plain and intelligible language").
- Secondly, certain key terms (namely those relating to the subject matter and price of the contract) are exempt from the requirement of fairness provided they are sufficiently transparent and prominent (i.e. brought to the consumer's attention, for example by being shown in bold or capital letters at the top of the terms and conditions). Terms that are not sufficiently prominent will not be deemed to be unfair per se but they will be subject to the test.
The CRA incorporates the 'grey list' of potentially unfair terms previously found in the Consumer Contracts Regulations. This includes, for example, terms that inappropriately limit a consumer's rights against a trader in the event of partial or non-performance of a contract, terms that give the trader (but not the consumer) discretion to unilaterally dissolve a contract etc. The CRA adds the following new items to the list:-
- Terms that require a consumer who decides not to conclude or perform a contract to pay disproportionately high sums in compensation to the trader or to pay for services which have not been supplied.
- Terms that allow the trader to determine the characteristics of the subject matter of the contract (i.e. the goods, services or digital content) after the consumer has already agreed to be bound by the contract.
- Terms that give the trader discretion over the price payable under the contract after the consumer has already agreed to be bound by it.
The list is indicative only and non-exhaustive: a term can be found to be unfair despite not being on the list and a term on the list will not necessarily be deemed to be unfair in all circumstances.
The CRA also removes a caveat that existed under the old regime to the effect that a term would not be deemed unfair if it had been individually negotiated (i.e. the unfair terms regime was directed at the trader's standard terms of business only). Now, even a term specifically negotiated can be deemed to be unfair. Conceptually this is a fairly significant extension of the regime. However, it may be that this has little practical impact given how rarely consumer contracts are individually negotiated.
Finally, the CRA introduces a new rule with the effect that if there is any legal dispute in relation to the contract the Courts will consider fairness even if neither party raises fairness as an issue. It is difficult to predict exactly what impact this will have on judgments but it clearly indicates an intention that there will be increasing scrutiny of fairness to consumers
Reply With Quote
Bookmarks