Consumer Protection

'Freedom of contract' is dead. The new maxim is 'let the Seller beware'.

If your terms and conditions of business do not respect the interests of Consumers, they are likely not to be binding, and you may be forced to change them by the Office of Fair Trading (OFT). Any investigations by the OFT are likely to reflect badly on your business and may involve much management time and legal costs.

Sellers must ensure:

• That any written term is expressed in plain intelligible language. The interpretation most favourable to the Consumer will prevail.  

• That the Consumer has the opportunity to view any terms included in the contract before signing and those terms must be presented in a readable format i.e. of a reasonable print size and colour.

The OFT are concerned with dealings with Consumers only. You are able, therefore, to use a tougher set of terms with your "Business" customers than with your "Consumer" customers.

The OFT reacts favourably to "cooling-off" periods giving the chance for Consumers to back out of a deal within 14 days.

The remainder of this Note is devoted to examples of "unfair" or "potentially unfair" terms.

Examples of unfair or potentially unfair terms

These are commonly found in terms and conditions on the basis that even if not valid, it might "put the Consumer off" making a claim.

Negligence. Clauses excluding liability for negligence.

"Entire agreement" clauses excluding liability on any preceding verbal or written representations.

Unreasonable Notice Periods. A portable telephone company had its 90-day notice period shortened to 30 days.

Cancellation. Penalty clauses must be reasonable and cancellation fees will be unfair if you suffer no actual loss from the cancellation. A clause conferring a right to cancel is also more likely to be fair if the Consumer has a reciprocal right. What is sauce for the goose ...

Hidden Terms. It is not good enough to refer to another document viewable on request. There must be a real possibility that the Consumer will get to see the full terms and conditions.

Unspecified Increase in Charges. It will be unfair if you can raise charges without giving the Consumer the right to terminate.

Consequential Loss. It is unfair to seek to exclude such loss. It will be for the Court to decide whether the loss is recoverable.

Seller's fault or failure. Any clause which purports to bind the Consumer to a contract in spite of your failure to comply with its terms, is likely to be considered unfair.

Public Notices. Disclaimers of liability are seen in car parks and other public places all the time. They will be unfair, if they exclude liability of the owner or operator for his own negligence.

Time Limits on claims. Clauses limiting the time within which the Consumer is allowed to register his dissatisfaction with goods or services will be deemed unfair, unless they are of reasonable length.

Retention of pre-payments. Clauses allowing a business not to refund pre-payments under any circumstances are likely to be unfair.

Restriction of legal remedies. Any clause restricting the consumer's choice of legal remedy for any dispute that may arise is likely to be unfair.

These notes are in very general terms and the list is certainly not exhaustive. If you have a problem or wish to investigate a particular situation, please get in touch with us.

Related topics you may find useful:

Commercial contracts
Unfair terms

Call Michael Breeze on 07900 195 195 or call 0845 270 2511 to set up an appointment