Misrepresentation, Non-Disclosure and Breach ... - Law Commission

A supplier would surely find it hard to sustain the argument that a
contract’s main subject matter was defined by a term which a
consumer had been given no real opportunity to see and read before
signing. 104
2.88 We explained that:
In a contract for a “holiday with travel by air”, a clause in the “small
print” allowing the company, in the event of air traffic control strikes,
to carry the consumer by rail and sea seems to be reviewable for
fairness; but it can be argued that if the holiday is “with travel by air
or, in the event of strikes, by rail and sea”, the option of mode of
travel might be part of the definition of the main subject matter. In
other words, whether the term relates to the definition of the subject
matter depends (at least in part) on how the deal is presented to the
consumer. 105
2.89 Applying the same principle to an insurance contract, take a case where a policy
was sold as “insurance for winter sports adventure holidays”, but a subparagraph
of one of the lengthy policy terms excluded off-piste skiing, and no
particular attempt was made to bring this to the proposer’s attention. The
exclusion of off-piste skiing would not be a core term. However, if the policy were
sold explicitly as “suitable for skiing on piste”, the same term might be exempt
from review, provided it was presented in a plain intelligible way.
2.90 Our draft Bill on Unfair Contract Terms sought to clarify the law in this area,
without changing it. Under clause 4(2), a term is excluded from review if it defines
the main subject matter of the contract provided the definition is-
(a) transparent and
(b) substantially the same as the definition the consumer reasonably
expected.
2.91 The draft Bill goes on to define “transparent” as meaning
(a) expressed in reasonably plain language,
(b) legible,
(c) presented clearly, and
104 Unfair Contract Terms Bulletin 2 (OFT 170, September 1996) para 2.26. This is quoted in
Unfair Terms in Contracts (2002), Law Com Consultation Paper No 166, Scot Law Com
Discussion Paper No 119, para 3.23.
105
Unfair Terms in Contracts (2002) Law Com Consultation Paper No 166, Scot Law Com
Discussion Paper No 119, para 3.23.
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