Reino Unido - Inglaterra: Unfair terms in consumer contracts
| Autor | Geoffrey Woodroffe |
| Cargo | Solicitor Director, Centre for Consumer Law Research, Brunel University, London |
| Páginas | 18-33 |
RPDC, Dezembro de 2013, n.º 76
18
RPDC
Revista Portuguesa
de Direito do Consumo
REINO UNIDO - INGLATERRA
UNFAIR TERMS IN CONSUMER CONTRACTS
Geoffrey WOODROFFE M.A.(Cambridge),
Solicitor Director,
Centre for Consumer Law Research,
Brunel University, London
Abstract: There is no general standard of fairness in Trish law against which contract
terms may be judged. There are, however, certain mandatory terms implied in contracts
for the sale of goods and supply of services. In consumer contracts these terms may not
be excluded or varied or (in the case of services) may be excluded or varied only if certain
conditions are met, including a condition of fairness and reasonableness.
A. Introduction
It is appropriate for me at this First European Congress on General Contract Terms
to concentrate my discussion of unfair terms on those terms which suppliers of goods
and services use to exempt themselves from liability for breach of contract. As the Unfair
Contract Terms Act 1977 has now been in force for 10 years (since 1 February 1978) it is
topical to analyse its provisions and to see how it is working in practice – in any case it
is now the main method of controlling exemption clauses. Some background to the Act
may put it in perspective.
B. Common Law Techniques
Before Parliament intervened it was left to the judges to try to hold the balance
between suppliers and consumers. The judiciary starts from the assumption that it is
not their function, nor do they have the power, to interfere with contracts freely made
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RPDC, Dezembro de 2013, n.º 76
RPDC
Revista Portuguesa
de Direito do Consumo
between the parties and to rewrite them merely because one party (usually a consumer
or small business) claims that the contract is unfair in the sense that the claimant could
or should have made a better bargain. This is often expressed as “The law will mend no
man’s bargain”. This follows from the English doctrine of consideration that the promises
or acts provided by each party do not have to be of equal value or counter-balance one
another.
A number of methods have been used over the decades to assist parties whose rights
or remedies have been removed by exemption clauses. The following are some of the
most important.
1. Incorporation
The document containing the exemption clause was not incorporated
in the contract, usually because it was introduced by the supplier after the
contract had been made (Thornton v Shoe Lane Parking [1971] 2 QB 163;
Chapelton v Barry Urban District Council [1940] 1 KB 532).
2. Construction
The clause is ambiguous and, applying the contra proferentem rule, it will
be construed and interpreted against the draftsman, ie the supplier (Hollier v
Rambler Motors [1972] 2 QB 71).
3. Repugnance
The exemption clause is repugnant to and inconsistent with some other
express term of the contract, so that the exemption clause is ignored and the
other express term given its full weight (Couchman v Hill [1948] KB 554).
4. Fundamental Breach
Lord Denning was an enthusiastic supporter of the proposition that it is a
rule of law that a party who is in fundamental breach of contract cannot rely
on an exemption clause, however it is drafted (Karsales v Wallis [1956] 1 WLR
Transport [1980] AC 827 that there is no such rule of law; it is a matter of
construction in each case whether the particular wording of the clause exempts
the supplier from liability.
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