Quote:
Originally Posted by flowrebmit
Florence, I think it took me somewhere in the order of 2.5 hrs to complete the online order for VM BB, because I spent sometime trying to read the T&C and AUP.
Mertle, they may indeed feel biased towards the supplier, but it is still worth reading the clauses that cover things like the length of lock-in to the service, any penalty payments for leaving early, etc, so that you know what you are about to buy. Also I think the consumer does have some protection against unfair clauses in contracts - things could apparently be a lot worse.
Agree entirely about the situation with shrink wrap and T&C. We could also add some software is not Fit for purpose.
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UCTA 77
Under section 11(1) of the Unfair Contract Terms Act 1977, in order to satisfy the ‘requirement of reasonableness’, the term must have been a fair and reasonable one to have included in the contract having regard to all the circumstances which were or ought reasonably have been known to, or in the contemplation of the parties when the contract was made. In other words, the ‘time-frame’ against which the assessment is made is that of the making of the contract and the actual breach is not relevant to the reasonableness of an exemption clause, merely potential breaches within the reasonable contemplation of the parties when they contracted. The burden of proof lies on the person seeking to rely upon the clause to show that it is reasonable (s11(5)). There are guidelines on reasonableness in schedule 2. They are only relevant by 'legislative prescription' when the requirement of reasonableness is applied by sections 6 or 7, but they are a list of factors which the courts have recognised to be generally factually relevant to the requirement of reasonableness, under whichever section it is applied (eg Phillips Products Ltd v Hyland [1987] 2 All ER 620, p 628). There is also further specific guidance as to the treatment of clauses which limit liability in section 11(4). In relation to such clauses, regard is to be had to the resources available to the person seeking to rely on the clause to meet potential liability and how far it was open to that party to obtain insurance cover. In general, the courts have indicated the relevance of considering the insurance situation eg whether the exemption clause placed the risk of some problem with performance on the person best able to insure and whether the allocation of the need to insure was reflected in the contract price.(2) The application of the ‘requirement of reasonableness’ is basically a weighing process, with the various factors indicating the reasonableness, or otherwise, of the clause, being put in the scales with an appropriate weighting. (On the requirement of reasonableness generally see Macdonald, 1999a)