Unfair Terms in Consumer Contracts: a new ... - Law Commission

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© Crown copyright 2012 ii
THE LAW COMMISSIONS: HOW WE CONSULT About the Commissions: The Law Commission and the Scottish Law Commission were set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Munby (Chairman), Professor Elizabeth Cooke, Mr David Hertzell, Professor David Ormerod and Frances Patterson QC. The Chief Executive is Elaine Lorimer. The Scottish Law Commissioners are: The Hon Lady Clark of Calton (Chairman), Laura J Dunlop QC, Patrick J Layden QC TD, Professor Hector L MacQueen and Dr Andrew J M Steven. The Chief Executive is Malcolm McMillan. Topic: This consultation covers unfair terms in standard form contracts between businesses and consumers. Geographical scope: England and Wales, Scotland. An impact assessment is available on our websites. Previous engagement: In 2001, the Department of Trade and Industry asked the Law Commissions to rewrite the law of unfair contract terms as a single regime, in a clearer and more accessible style. Subsequently, in 2005, we published a Report on Unfair Terms in Contracts with a draft Bill. This can be found on our websites. Duration of the consultation: 25 July 2012 to 25 October 2012. How to respond Send your responses either – By email to: commercialandcommon@lawcommission.gsi.gov.uk or By post to: Donna Birthwright, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ Tel: 020 3334 0282 / Fax: 020 3334 0201 If you send your comments by post, it would be helpful if, where possible, you also sent them to us electronically (in any commonly used format). After the consultation: We plan to publish an Advice to the Department for Business, Innovation and Skills in spring 2013. Freedom of information: We will treat all responses as public documents. We may attribute comments and publish a list of respondents’ names. If you wish to submit a confidential response, it is important to read our Freedom of Information Statement on the next page. Availability: You can download this Issues Paper and the other documents free of charge from our websites at: http://lawcommission.justice.gov.uk/consultations/unfair_consumer_contracts.htm and http://www.scotlawcom.gov.uk (See News column). iii
Page 1: Unfair Terms in Consumer Contracts:
Page 6 and 7: CODE OF PRACTICE ON CONSULTATION Th
Page 8 and 9: TABLE OF ABBREVIATIONS ACL Australi
Page 10 and 11: 1.5 This paper, therefore, has two
Page 12 and 13: 1.14 Our main concern is the uncert
Page 14 and 15: (2) in particular to examine articl
Page 16 and 17: PART 2 OVERVIEW OF THE LAW AND THE
Page 18 and 19: Implementing the Unfair Terms Direc
Page 20 and 21: Terms must be fair 2.16 Under the U
Page 22 and 23: 2.28 In 2002, we noted that there h
Page 24 and 25: (3) For contracts between a busines
Page 26 and 27: PART 3 THE PURPOSE OF UNFAIR TERMS
Page 28 and 29: None of you nowadays will remember
Page 30 and 31: 3.19 As a result of the investigati
Page 32 and 33: BEHAVIOURAL BIASES 3.27 In the last
Page 34 and 35: Behavioural biases and the UTCCR 3.
Page 36 and 37: 3.48 There is a clear difference, h
Page 38 and 39: PART 4 THE EXEMPTION: PREVIOUS RECO
Page 40 and 41: 4.10 The changes sought to reconcil
Page 42 and 43: Plain, intelligible language 4.19 W
Page 44 and 45: The definition of the main subject
Page 46 and 47: (1) Renewal commissions - terms whi
Page 48 and 49: Of course the theory is that the ty
Page 50 and 51: In my view those words involve no m
Page 52 and 53: 5.28 The Supreme Court overruled th
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the more closely related the paymen
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5.50 Therefore, the Court concluded
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There can be payments which do not
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5.69 In 2010, the OFT noted that th
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5.79 Despite this, the judge did no
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5.89 Alternatively, a court may dec
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PART 6 REACTIONS TO THE BANK CHARGE
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Support for the decision 6.7 There
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Article 189 of the EC Treaty oblige
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6.23 Conversely, the Confederation
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HOW HAVE ENFORCEMENT BODIES INTERPR
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6.41 However, when we met the OFT a
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6.48 The case of Bankers Insurance
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PART 7 THE EUROPEAN CASE LAW 7.1 Th
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Correcting an imbalance 7.12 The CJ
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According to settled case-law, it i
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7.28 The finding that the omission
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Directive 93/13, a particular metho
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7.44 The leading case on the averag
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7.52 The list of just three factors
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e aware of the approach taken by th
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(d) readily available to any party
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PART 8 PROPOSALS FOR REFORM A NEW A
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(7) Little attempt to distinguish b
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8.20 In some cases, where the consu
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8.31 In a general challenge, the co
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(1) Permit the trader to retain sum
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Terms which give the trader discret
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8.65 On balance, we think that our
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The grey list 8.74 Article 3(3) of
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Example 3 - Lightfinger Lender In t
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Example 7 - Mr Dodgy Door Seller In
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It is particularly important, in or
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9.17 Do consultees agree that the n
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9.30 Do consultees agree that: (1)
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9.42 We discussed this in some deta
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NOTICES 9.54 UCTA covers contract t
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9.68 The first two protections also
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PART 10 LIST OF CONSULTATION QUESTI
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(1) In proceedings brought by indiv
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