Is The Statutory Controls On Unfair Contract?

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Consider the extent to which the statutory controls on unfair contract terms foster genuine freedom of contract as opposed to promoting a protectionist strategy. There are two main statutes dealing with unfair contract terms in English law today, where previously common law held jurisdiction. After recommendations from the Law Commission in 1975, the first statute was implemented. This is the Unfair Contract Terms Act 1977 (hence UCTA), which somewhat paradoxically does not deal only with contract terms (extending to non-contractual terms in tort law) and focuses mostly on exemption clauses and not unfair terms as a whole – there remains no general doctrine of unfairness in contract law. This often means that the party attempting to rely…show more content…
excluding or restricting liability by reference to terms and notices which exclude or restrict the relevant obligation or duty”) that scope is extended to certain duty-defining clauses. McKendrick states that this provision is likely meant to prevent the more powerful party from exploiting the weaker one through their being able to afford more draftsmen who could attempt to evade the scope of the Act in the absence of s13. This would appear to be a point in favour of the idea that UCTA prefers a protectionist strategy in favour of the weaker party. However, Lord Diplock...PHOTO.PRODUCTION A further general point to note is that UCTA does not apply to insurance contracts, contracts selling or transferring title to land or those concerning intellectual property (Sch. 1(1)). It has been noted that the lack of coverage of insurance contracts may have had a negative impact on overall fairness, as power imbalance between the two parties in this area of contracting is rife. CASE?? UCTA, according to Adams and Brownsword, is “particularly protective” towards parties “dealing as consumer”. This assertion is supported by s6 of UCTA, which sets out that a party cannot contract out of liability where the other party is “dealing as consumer” but may do so (subject to reasonableness) if the other party is not so doing. As per s12, a party deals as consumer in the situation where he neither

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