Unfair Contract Terms Act 1977

Contract law
Formation
Capacity Offer and acceptance Meeting of the minds2 Abstraction principle4,5 Posting rule1 Mirror image rule Invitation to treat Firm offer Consideration1,4 Implication-in-fact Collateral contract
Defences
Misrepresentation Mistake Threats and unequal bargaining power Illegality and public policy Unconscionability Culpa in contrahendo2 Force majeure Frustration of purpose Impossibility Impracticability Hardship Set-off Illusory promise1 Statute of frauds1 Non est factum1 Unclean hands1 Accord and satisfaction1
Interpretation
Parol evidence3 Contract of adhesion Integration clause Contra proferentem UNIDROIT Principles of International Commercial Contracts
Dispute resolution
Choice of law clause Forum selection clause Hague Choice of Court Convention Arbitration New York Convention UNCITRAL Model Law on International Commercial Arbitration Mediation Singapore Mediation Convention Enforcement of foreign judgments Hague Judgments Convention
Rights of third parties
Privity of contract1 Assignment Delegation Novation Third-party beneficiary
Breach of contract
Anticipatory repudiation Cover Exclusion clause Efficient breach Deviation Fundamental breach
Remedies
Specific performance3 Money damages Liquidated, stipulated, or penal damages3 Rescission
Quasi-contractual obligations
Promissory estoppel1 Quantum meruit1 Unjust enrichment Restitution Negotiorum gestio2
Duties of parties
Duty of honest contractual performance (or doctrine of abuse of rights)6 Duty of good faith (also implied covenant of good faith and fair dealing or duty to negotiate in good faith)7 Contract A and Contract B6
Related areas of law
Conflict of laws Commercial law
By jurisdiction
Australia Canada China (mainland) Irish contract law India United Kingdom England and Wales Scotland
Other law areas
Tort law Property law Wills, trusts, and estates Criminal law Evidence
Notes
1 Specific to common law jurisdictions 2 Specific to civil and mixed law jurisdictions 3 Historically restricted in common law jurisdictions but generally accepted elsewhere; availability varies between contemporary common law jurisdictions 4 Specific to the German Bürgerliches Gesetzbuch and other civil codes based on the pandectist tradition 5 Explicitly rejected by the UNIDROIT Principles of International Commercial Contracts 6 Specific to Canadian contract law both in Québec and in the country's common law provinces 7 Specific to civil law jurisdictions, the American Uniform Commercial Code, and Canadian jurisprudence in both Québec and the common law provinces pertaining to contractual and pre-contractual negotiation

Negligence. s2(1), liability for negligence occasioning death or personal injury cannot be excluded.

Manufacturers' guarantee. s5(1), loss arising from (a) defective goods or (b) negligence of distributor cannot be excluded where goods are "of a type ordinarily supplied for private use or consumption".

Sale of goods

• s6(1), implied terms as to title (Sale of Goods Act 1979 s12) cannot be excluded.
• s6(2), implied terms as to description, quality or sample (Sale of Goods Act 1979 ss13-15) cannot be excluded against a consumer.

Terms governed by the Consumer Protection Act 1987.

They are also governed (since 2007) by the Occupiers Liability Act 1984.

Negligence. s2(2), exclusion of liability for all types of negligence (other than for death or personal injury which is banned) must satisfy the requirement of reasonableness.

Contractual liability. s3, This applies against a party that deals on standard written terms or where the other party deals as a consumer. Any exclusion by that party for liability arising from a breach committed by that party under the same contract (s3(2)(a)) or performance under a contract which is substantially or totally different of that which is reasonably expected of him (s(3)(b)) shall be void except insofar as it satisfies the requirement of reasonableness.

Indemnity clauses. s4, A party dealing as a consumer cannot contract to indemnify a third party on behalf of the other party, except insofar as it satisfies the requirement of reasonableness.

Sale of goods. s6(3), Implied terms as to description, quality and sample (Sale of Goods Act 1979 ss 13–15) may only be reasonably excluded where neither party is dealing as a consumer.

Misrepresentation. s8, substitutes the Misrepresentation Act 1967 s3. Under that post-1979 section, an exclusion of liability for misrepresentation must satisfy the requirement of reasonableness.

Business. s 1(3), The Act only applies to "liability for breach of obligations or duties arising (a) from things done or to be done by a person in the course of a business (whether his own business or another's); or (b) from the occupation of premises used for business purposes of the occupier". s14, Includes any government department.

Consumer. s 12,[3] A party deals as a consumer if

• s12(1)(a), He is not in the course of a business and does not hold himself to do so.[4]
• s12(1)(b), the other party is in the course of a business.
• s12(1)(c), In a contract for sale of goods, the goods are of a type "ordinarily supplied for private use or consumption" (s12(1A), this subsection does not apply to individuals)
• s12(2), A party is not a consumer if dealing at an auction where he has the opportunity to attend in person or is not a natural person buying auction.
• s12(3), Burden is upon the party purported to be acting in the course of a business to show that either he is not in the course of a business or that the other party is otherwise not a consumer.

Section 11 provides some guidance but most development has been in common law.

Schedule 2 gives guidelines specifically to ss 6(3), 7(3), 7(4).

Case law

• Stewart Gill Ltd v Horatio Myer & Co Ltd.[5] provides that reasonableness is assessed at the time of contract; and that the burden of proof is upon the party purporting to have excluded liability.
• Levison v Patent Steam Carpet Cleaning Co Ltd.[6] provides that clarity and preciseness will raise the reasonableness of a term; and vice versa. See also Stag Line Ltd v Tyne Ship Repair Group Ltd.[7] as to small print (literally – relating to the size of the lettering).
• Smith v Eric S Bush.[8] Lord Griffith provides four points that may be considered (see application in St Albans City and District Council v International Computers Ltd[9]):
  • Equality of bargaining powers.
  • How practical was it to obtain independent legal advice regarding the term?
  • How difficult is the task being undertaken for which liability is being excluded?
  • What are the practical consequences of ruling that a term is unreasonable?
• Pegler v Wang (2000) is an exclusion of liability case noted within a family of legal cases relating to "system supply contracts",[10] relating to the purchase of an IT system which, the customer argued, did not do what was wanted.[11] The purchasers (Pegler) had made it clear that they preferred a system installation whose performance could be "certainly guaranteed" rather than a better-functioning system whose operation might not be satisfactory.[12] The exemption clause in this particular case was held to be unreasonable,[10] and the judge made an order for rectification of the contract to include certain correspondence relied on by Pegler.[11]^{: Sections 39, 385} A further hearing arose as to costs.[13]
• Other relevant cases include Watford Electronics v Sanderson (2001),[14] South West Water v ICL [1999] BLR 420 and Horace Holman Group Ltd v Sherwood International Group Ltd. (2000) (Unrep, 12th April 2000).

• Standard form contract
• Consumer Rights Act 2015
• Unfair Terms in Consumer Contracts Regulations 1999
• Electronic Commerce Regulations 2002
• Office of Fair Trading v Abbey National and Others (2008) - Bank charges test case
• Britvic Soft Drinks Ltd v Messer UK Ltd [2002] EWCA Civ 548
• Commerzbank AG v Keen [2007] IRLR 132
• Baltic Shipping Company v Dillon (1993) 176 CLR 344

• PS Atiyah, An Introduction to the Law of Contract (Clarendon, Oxford 2000)
• H Collins, Contract Law in Context (CUP 2004)
• E McKendrick, Contract Law (8th edn Palgrave 2009)
• J Hilliard and J O’Sullivan, The Law of Contract (2nd edn OUP 2006)
• A Burrows, A Casebook on Contract (2nd edn Hart, Oxford 2009)
• Jill Poole, Casebook on Contract Law (2006) 8th Ed., Oxford University Press
• Ewan McKendrick, Contract Law - Text, Cases and Materials (2005) Oxford University Press ISBN 0-19-927480-0