Unfair Contract Terms

1. UTCCR

   Anmerkungen:

   • unfair terms in consumer contracts regulations
   1. excludes same exclusion clauses as UCTA
   2. extra protection for consumers
      1. ALL contract terms must be reasonable

         Anmerkungen:

         • when the customer
         1. when the customer has not negotiated individual terms
         2. court will consider
            1. the relative power of the parties
            2. if a special lower price was offered because of the clause
            3. has the seller tried to deal fairly?
   3. evaluation
      1. postives

         Anmerkungen:

         • extends protection to all types of terms   definition of consumer wider than UCTAProtects customersFair to sellers where a consumer has willingly negotiatedthe clause 
      2. negatives

         Anmerkungen:

         • confusing overlap with UCTA 'reasonable' is subjective and hard to predict No special body to check fairness of contracts so consumers must challenge them individually 
   4. defines 'unfair'
      1. where one party abuses the balance of power
   5. new definition of 'consumer'

      Anmerkungen:

      • anyone buying for a purpose outside of their usual business wider than UCTA

1. cases decided judges
   1. is the clause INCORPORATED into the contract?

      Anmerkungen:

      • judges have decided cases depending on whether the defendant's attempt to include an exclusion clause are actually PROPERLY part of the contract. 
      1. Graucob v L'Estrange

         Anmerkungen:

         • Pub owner bought a vending machine which was faulty They had signed a contract which excluded liability for the fault   
         1. signed agreement INCORPORATES clause

            Anmerkungen:

            • even though she hadn't read the contract, the clause was effective and she couldn't get her money back
2. Olly v Marlborough Ct hotel

   Anmerkungen:

   • hotel room key stolen from the 'safety' of the hotel reception.  Mrs Olley's fur coat was stolen 
   1. Exclusion clause on back of door
      1. "customer must be aware when contract is made"

         Anmerkungen:

         • the contract was made when checking in at the reception, so the sign in room could not be known about. The term is not part of the contract
3. Parker v SE Railway

   Anmerkungen:

   • luggage stolen from a secure railway station platform
   1. Exclusion clause on cloakroom ticket
      1. Exclusion clause should not be 'hidden'
         1. Customer's attention should be drawn to exclusion clause
4. McCutcheon v McBrain

   Anmerkungen:

   • A ferry sank with the claimant's car on board
   1. Exclusion clause 'note' sometimes given.

      Anmerkungen:

      • the defendant's argued that although the claimant had not received the note on the day that the ferry sunk, because he was a regulr customer, he should have been aware that this was there 'normal course of business
      1. Exclusion clause not valid

         Anmerkungen:

         • to rely on the 'normal course of business' as knowledge and incorporation of an exclusion clause, behaviour must be CONSISTENT
5. Thornton v ShoeLane Parking

   Anmerkungen:

   • Claimant was injured.  The contract for the parking was made by inserting coins into an automated barrier The exclusion clause was printed on a sign by the barrier 
   1. There should be an opportunity to negotiate an exclusion clause

      Anmerkungen:

      • the claimant could not have negotiated with the automated system
      1. customers MUST be aware of clause

         Anmerkungen:

         • even a sign at the entrance is not drawing the customer's attention SUFFICIENTLY  to such and important exclusion clause
6. evaluation
   1. positive

      Anmerkungen:

      • the protections are quite broad and fair to consumers They must KNOW ABOUT THE CLAUSE AT THE TIME OF MAKING THE CONTRACT    companies cannot hide the contract or behave in an inconsistent way 
   2. negative

      Anmerkungen:

      • only exclusion clauses are dealt with where a document is signed the clause is binding, regardless of whether the consumer understood it or read it. 

1. UCTA 1977

   Anmerkungen:

   • Unfair Contract Terms Act
   1. only relates to exclusion clauses
      1. Exclusion clauses are either outlawed, or else must be 'reasonable'
   2. 3 types of clauses automatically excluded
      1. Cannot exclude liability for death/injury

         Anmerkungen:

         • if you negligently injure or kill someone, you cannot avoid a negligence claim for compensation
         1. makes companies vigilant to safety

            Anmerkungen:

            • makes products and services safer for everyone
         2. injured people can still get compensation

            Anmerkungen:

            • important for justice
      2. cannot avoid the consumer law implied terms

         Anmerkungen:

         • you cannot get out of the Sale of Goods Act implied terms (quality, fit for purpose, as described)  OR the Supply of Goods and Services terms (reasonable care and skill, reasonable price, reasonable timescale) 
         1. means that companies cannot avoid the law

            Anmerkungen:

            • democratic principle that the law should apply equally
         2. means that companies will aim to provide quality products
         3. Disappointed customers can get a remedy
      3. Cannot exclude negligence in a guarantee

         Anmerkungen:

         • if a product has a 'guarantee' with it, this contract may not exclude any kind of negligently caused defect.  So a guarantee for a new TV which tries to avoid liability for the "screen" will still have to remedy the screen if it has been negligently manufactured.  
         1. makes guarantees more secure

            Anmerkungen:

            • means customers do not need to read miles of small print   makes companies have to make robust and safe products 
   3. evaluation
      1. positive

         Anmerkungen:

         • prevents consumer being injured and receiving no comp, which would be unjust   Protects the statutory implied terms for customers Straightforward rules. Certain clauses are mere exempt. No grey areas 
      2. negative

         Anmerkungen:

         • limited in scope - only exclusion clauses
   4. defines consumer contracts

      Anmerkungen:

      • 1 party not buying in the course of business 1 party selling as a business Goods are normal type of consumer goods. 

Anmerkungen:

• where one party is trying to avoid its normal responsibilities under negligence or contract law if something goes wrong for the customer.