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'The ‘core exemption’ from the fairness test in unfair terms legislation'

Elizabeth Macdonald

Journal of Contract Law, Volume: 2012, Issue: 29, Pages: 121 - 154

Swansea University Author: Elizabeth Macdonald

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Abstract

EU / UK unfair terms legislation appeared to provide very significant levels of consumer protection. However, its effectiveness depends upon the scope of the exemption from the fairness test of ‘core terms’. The ‘core exemption’ is based on the idea of an area which should be left to be regulated by...

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Published in: Journal of Contract Law
ISSN: 1030-7230
Published: 2012
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URI: https://cronfa.swan.ac.uk/Record/cronfa13320
first_indexed 2013-07-23T12:10:00Z
last_indexed 2019-06-12T19:29:05Z
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recordtype SURis
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spelling 2019-06-12T17:21:28.4689633 v2 13320 2012-11-21 'The ‘core exemption’ from the fairness test in unfair terms legislation' a63a909e63c139a6816c06d3d6776339 Elizabeth Macdonald Elizabeth Macdonald true false 2012-11-21 EU / UK unfair terms legislation appeared to provide very significant levels of consumer protection. However, its effectiveness depends upon the scope of the exemption from the fairness test of ‘core terms’. The ‘core exemption’ is based on the idea of an area which should be left to be regulated by the market because the consumer will have encompassed consideration of those terms in the decision to contract. It is shown that the significant question raised in the cases is whether an ‘assumed’ or an ‘assessed’ approach should be taken to the presence of such consideration. Grave fears for the efficacy of the Regulations have been raised by the Supreme Court’s ‘assumed’ approach. The problem is analysed and potential means of mitigating the impact of the decision are looked at. It is concluded that a demanding ‘assumed’ approach will differ little in its outcomes, from what could have been an appropriate level of ‘assessed’ approach, and that the recommendations in the Law Commissions new Issues Paper (Unfair Terms in Consumer Contracts: a new approach), would produce such an approach. The similar, recent, Australian unfair terms legislation is also considered, and the potential to avoid the problems encountered in the UK is identified. Journal Article Journal of Contract Law 2012 29 121 154 1030-7230 31 12 2012 2012-12-31 COLLEGE NANME COLLEGE CODE Swansea University 2019-06-12T17:21:28.4689633 2012-11-21T10:02:05.3930608 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law Elizabeth Macdonald 1
title 'The ‘core exemption’ from the fairness test in unfair terms legislation'
spellingShingle 'The ‘core exemption’ from the fairness test in unfair terms legislation'
Elizabeth Macdonald
title_short 'The ‘core exemption’ from the fairness test in unfair terms legislation'
title_full 'The ‘core exemption’ from the fairness test in unfair terms legislation'
title_fullStr 'The ‘core exemption’ from the fairness test in unfair terms legislation'
title_full_unstemmed 'The ‘core exemption’ from the fairness test in unfair terms legislation'
title_sort 'The ‘core exemption’ from the fairness test in unfair terms legislation'
author_id_str_mv a63a909e63c139a6816c06d3d6776339
author_id_fullname_str_mv a63a909e63c139a6816c06d3d6776339_***_Elizabeth Macdonald
author Elizabeth Macdonald
author2 Elizabeth Macdonald
format Journal article
container_title Journal of Contract Law
container_volume 2012
container_issue 29
container_start_page 121
publishDate 2012
institution Swansea University
issn 1030-7230
college_str Faculty of Humanities and Social Sciences
hierarchytype
hierarchy_top_id facultyofhumanitiesandsocialsciences
hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
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description EU / UK unfair terms legislation appeared to provide very significant levels of consumer protection. However, its effectiveness depends upon the scope of the exemption from the fairness test of ‘core terms’. The ‘core exemption’ is based on the idea of an area which should be left to be regulated by the market because the consumer will have encompassed consideration of those terms in the decision to contract. It is shown that the significant question raised in the cases is whether an ‘assumed’ or an ‘assessed’ approach should be taken to the presence of such consideration. Grave fears for the efficacy of the Regulations have been raised by the Supreme Court’s ‘assumed’ approach. The problem is analysed and potential means of mitigating the impact of the decision are looked at. It is concluded that a demanding ‘assumed’ approach will differ little in its outcomes, from what could have been an appropriate level of ‘assessed’ approach, and that the recommendations in the Law Commissions new Issues Paper (Unfair Terms in Consumer Contracts: a new approach), would produce such an approach. The similar, recent, Australian unfair terms legislation is also considered, and the potential to avoid the problems encountered in the UK is identified.
published_date 2012-12-31T12:27:43Z
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