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31 Cards in this Set
- Front
- Back
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what do statutory controls like the CRA do |
regulates limitation clauses in business to business contracts |
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what kind of parties does the UCTA apply to |
business to business contracts |
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what kind of parties does the CRA apply to |
only agreements involving consumers |
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what does the UCTA deal with |
only deals with exclusion clauses |
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what does the CRA deal with |
exclusion clauses and every other contractual term in a consumer contract |
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what does the CRA do |
regulates unfair terms in consumer contracts |
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what are the 2 categories the CRA places contractual terms in |
prohibited terms other terms |
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what are prohibited terms |
terms that seek to exclude/limit a traders liability for death/personal injury caused by negligence terms that aim to limit/exclude statutory rights and remedies provided to consumers in pt1 of the act |
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whats the test for ‘other terms’ under the CRA |
test of transparency and unfairness which includes a test of good faith and fair dealing |
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what kinds of terms are exempted from the unfairness test |
terms dealing with price and the core bargain and subject matter of the contract |
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how does the CRA define a consumer |
defines it more as an individual than a legally incorporated organjsation |
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what does the CRA regulate |
written and oral contracts between traders and consumers all consumer contracts with exceptions like employment contracts |
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what are the 4 categories of terms under the CRA |
prohibited terms that arent enforceable against a consumer terms that are enforceable only if they satisfy the test of transparency and fairness terms that arent enforceable against a consumer becahse theres a suspicion of unfairness terms that are exempt from the test because they govern the price/subject matter |
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what qualifies as prohibited terms |
terms that seek to exclude liability for death/personal injury |
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what are 2 examples of remedies and rights that cannot be excluded |
s19 30 day return policy s9 goods must be of satisfactory quality |
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whats assessed when exploring whether a term causes a significant imbalance to the detriment of a consumer |
whether the trader has acted in good faith |
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what is the requirement of good faith |
a requirement of openness, transparency and fair dealing |
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why is EU law relevant to the CRA |
the act and pt2 on unfair terms transposes an EU directive on unfair terms and consumer contracts into UK law |
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in what case does Lord Bingham define ‘openness’ |
The Director General of Fair Trading v First National Bank plc |
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what is Lord Binghams definition of openness |
terms should be ‘expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disavantageously to the consumer’ |
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what is the transparency test acc to part 2 of the act |
terms written plainly and intelligible language sufficiently clear for the avg consumer to understand and make an informed decision shouldnt aim to trick the consumer |
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in what case does Lord Bingham outline what fair dealing requires |
The Office of Fair Trading v Foxtons Ltd |
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what does Lord Bingham define fair dealing as |
trader should not deliberately or unconsciously take advantage of the consumers circumstances to their detriment |
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acc to the CJEU what must the trader ask themselves |
if there was not an inequality in circumstances and bargaining power, would the consumer have accepted these terms? |
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according to the competition and market authority what to traders need to consider when drafting a contract |
personal, cognitive, physical and socio-economic and situational vulnerabilities of consumers when drafting terms of contracts |
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what is the CRA’s grey list |
list of potentially unfair terms |
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what are some examples of grey list terms |
terms that exclude poor service terms that exclude liability for faulty/misdescribed goods terms that exclude failure to perform contractual obligations |
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what does a trader have to do if they do include a term on the grey list |
they have a burden of proof of listing the strong suspicion of unfairness |
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what case says that exempted terms were to be construed narrowly and restrictively |
First National Bank case |
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when are price and subject matter terms correctly exempted |
only where they pass the prominence and transparency test |
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what case shows that the line between exempted price and subject matter terms and non-exempted terms is not always clear |
Office of Fair Trading v Abbey National plc |
