Other articles have looked at the fairness and transparency tests that apply to contract terms in detail. There are both blacklisted (prohibited) and grey listed terms. This article will discuss the grey listed terms in more detail whilst another will look at the blacklist.
Schedule 2 of the Consumer Rights Act demonstrates the meaning of fairness by including a non-exhaustive list of terms that may be unfair, known as the grey list. These terms may be unfair in certain circumstances. They may cause or allow the following common problems:
- Denying consumers full redress if things go wrong.
- Tying a consumer into a contract beyond what they would usually expect.
- The trader not having to perform their obligations.
- Consumers unfairly losing pre-payments if the contract is ended.
- The trader randomly changing the terms after they have been agreed. For example, supply a different product, raise the price, or reduce consumer rights.
- The trader deciding the price or subject matter of the contract after the consumer is bound by it.
- Consumers being subject to disproportionate financial sanctions.
Terms are under suspicion of unfairness if they have the same purpose as terms in the schedule or if they can by whatever means produce the same result (imbalance or lack of transparency).
The Grey List terms:
- Exclusion of liability for death and personal injury.
- Exclusion of liability for faulty and misdescribed goods or digital content.
- Exclusion of liability for poor service.
- Limitations of liability.
- Time limits on claims.
- Terms excluding the right of set-off.
- Exclusions of liability for delay.
- Exclusion of liability for failure to perform contractual obligations.
- Guarantees and warranties operating as exclusion clauses.
- Binding consumers while allowing the trader to provide no service.
- Retention of prepayments on consumer cancellation.
- Disproportionate financial sanctions.
- Disproportionate termination fees and requiring consumers to pay for services not supplied.
- Unequal cancellation rights.
- Traders right to cancel without refund.
- Traders right to cancel without notice.
- Excessive notice periods for consumer cancellation.
- Binding consumers to hidden terms.
- Traders right to vary terms generally.
- Right to determine or change what is supplied.
- Price variation clauses.
- Traders right of final decision.
- Entire agreement clauses.
- Formality requirements.
- Binding consumers where the trader defaults.
- Traders right to assign without consent.
- Restricting the consumers remedies.
Other terms considered potentially unfair:
- Allowing the trader to impose unfair financial burdens.
- Transferring inappropriate risks to consumers.
- Unfair enforcement powers.
- Excluding the consumers right to assign.
- Consumer declarations.
- Exclusion and reservations of special rights.
- Traders discretion in relation to obligations
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