Unfair contract terms flowcharts, Lecture notes of Business

Download Unfair contract terms flowcharts and more Lecture notes Business in PDF only on Docsity! 1 Unfair contract terms flowcharts Unfair terms flowchart The flowchart aims to provide an ‘at a glance’ simplified overview of the unfair terms provisions in Part 2 of the Consumer Rights Act 2015 (the Act). It should not be used, in isolation, to determine the fairness or otherwise of a particular term, and should be read in light of the guidance documents as a whole. It is not a substitute for legal advice. Is it a term or notice that is blacklisted? Is it either: a term in a trader to consumer contract or a trader to consumer notice? Is it laid down by law? Is it a term that specifies main subject matter of the contract or price? Is it in the Grey List? Is it transparent? (Must be in plain and intelligible language) Is it transparent and prominent? Does it create significant imbalance, contrary to the requirements of good faith, to the detriment of consumers? (The ‘fairness test’) Outside scope Outside scope (provided its effect can be understood by consumers) Not unfairUnfair Open to injunctive action by enforcement authorities to prevent use Description of main subject matter or adequacy of the price, not assessible for fairness NO YES Automatically unenforceable as a blacklisted term/notice (Note: blacklisting does not stop a term from also being unfair under Part 2 of the Consumer Rights Act 2015) NO YES NO YES YES NO NO YES YES Unlikely to meet ‘fairness test’ Unlikely to meet ‘fairness test’ NO NO YES NO In private disputes (individual consumers vs trader) court interprets in favour of consumer where ambiguous Additional consequences if not transparent YES 2 Chart for the Act’s core exemption The flowchart below aims to provide an ‘at a glance’ simplified overview of the core exemption provisions in Part 2 of the Act. It should not be used, in isolation, to determine the fairness or otherwise of a particular term, and should be read in the light of guidance documents as a whole. It is not a substitute for legal advice. Helpful links Consumer Rights Act 2015: www.legislation.gov.uk/ukpga/2015/15/pdfs/ukpga_20150015_en.pdf CMA guidance page: www.gov.uk/government/publications/unfair-contract-terms-cma37 CMA website: www.gov.uk/government/organisations/competition-and-markets- authority Financial Conduct Authority website: www.fca.org.uk/ Ofcom website: www.ofcom.org.uk/ Department for Business, Innovation and Skills website: www.gov.uk/government/organisations/department-for-business-innovation-skills Does the term have the object or effect of a term on the Grey List? Is the fairness assessment of the appropriateness of the price in comparison with the services, goods or digital content supplied in exchange? The term is fully assessible for fairness The core exemption does not apply The term benefits from the core exemption The term is fully assessible for fairness Is the term transparent and prominent? Is the fairness assessment of the main subject matter of the contract? NOYES NOYES NOYES YES NO