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(c) ‘Reasonableness’ (s.11 and Schedule 2)

Consider:

(i) bargaining position;

(ii) inducements to accept limitation of rights;

(iii) knowledge of existence of clause;

(iv) practicability of complying with procedural requirements (which limit customers' rights if not followed) eg. a time limit for claims;

(v) goods produced to special order.

(d) Where the clause is seeking to limit as opposed to exclude liability the Courts must have regard to the resource available to the party to meet the liability and the availability of insurance. St Albans City and District Council-v-International Computers Ltd.

4 The unfair terms in consumer contracts regulations 1999

4.1 Apply to consumer contracts in standard form supplied by business. Also apply to insurance contracts. Contracts covered by the regulations must be expressed in plain language. These regulations work alongside and in conjunction with UCTA 77.

4.2 Consumer defined as natural person (not Co.) acting outside course of business.

4.3 Unfair term defined as: – a term causing significant imbalance in position between the parties

– is contrary to requirement of good faith

– is to the detriment of consumer

4.4 Good faith defined on same basis as UCTA’s reasonableness.

4.5 The regulations provide that a seller should ensure that any written term is expressed in plain language. Ambiguities will be construed in favour of the consumer.

4.6 Remedies

– Court declaration that term (but not remainder of contract if clause can be “severed” from it) is not binding.

– Consumer or other body can apply to DG of Fair Trading: injunction granted against the term.