Other articles have looked at the fairness and transparency test that apply to contract terms in more detail. However, there are some prohibited terms known as the blacklist. There are also grey listed terms which could be classed as unfair and fail the fairness test. Another article will discuss the grey list in more detail whilst this article will look at the blacklist.
The Consumer Rights Act 2015 makes certain contract terms and one kind of consumer notice legally ineffective. They are not binding or enforceable by the trader against the consumer. Terms and notices can also be ineffective and unenforceable if they fail the fairness test. However, blacklisted terms are automatically unenforceable so there is no need to apply the fairness test.
While any blacklisted term or notice is likely to be unfair, it is not true that any potentially unfair wording is likely to be blacklisted.
A trader cannot use a consumer contract term or notice to exclude or restrict liability for death or personal injury resulting from negligence. There are some exemptions to this which include contracts for insurance.
A trader cannot use a term that aims to relieve them from their ordinary obligation to ensure their products are of satisfactory quality and that their services are provided with reasonable care.
Terms that aim to exclude or restrict statutory rights and any remedies are not binding on the consumer.
Consumers have important rights when entering contracts for good, services, and digital content.
- Must be of satisfactory quality.
- Must be fit for purpose, including any purpose the consumer made known to the seller before the contract.
- Must match the description given to them by the trader.
Digital content that has been paid for must also be of satisfactory quality, fit for purpose and as described. It is also a statutory requirement that the business must have the right to supply digital content that is to enable the consumer to use it or own it if ownership is being transferred. Usually the consumer is purchasing the right to use digital content under the terms of an end-user licence agreement.
- Must be performed with reasonable care and skill.
- If no price has been agreed, a reasonable price only is payable.
- If no time for performance has been agreed, the service must be performed in a reasonable time.
Consumers enjoy additional protection where they are given information about the trader and/or the service. This means that if a business makes a statement about itself and its services, which the consumer is likely to see, it is likely to find itself legally bound to supply, for example, something that meets any description made.
Terms that aim to restrict the above rights are blacklisted.
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