4 The role of legislation
There has been a growing recognition of consumer rights in the twentieth and twenty-first centuries. This has resulted in the emergence of a variety of consumer protection legislation. With the coming into force of the Consumer Rights Act 2015, which applies to consumer contracts made on or after 1 October, 2015, the legislative arrangements have changed significantly from those you may find in text books. There are now only two key pieces of legislation governing exclusion clauses. One governs business-to-business contracts (where all parties to the contract are in business). The other captures all situations where one, or more, of the parties is contracting as a consumer. As a result, you should take a binary (two alternative) approach when determining which piece of legislation might apply to render an exclusion clause either, wholly, or in part, ineffective.
The two principle legislative controls on unfair contract terms or notices and exclusion clauses are:
- The Unfair Contract Terms Act 1977 (UCTA 1977) – this general regime covers contracts including business-to-business contracts, but not consumers.
- The Consumer Rights Act 2015. As the short title indicates this applies to all contracts, entered into on or after 1 October 2015, in which one of the parties is a consumer.
The CRA 2015 came into force on 1 October 2015 and replaced the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR 1999). However, it is necessary to briefly consider UTCCR 1999 to understand the issues the CRA 2015 is designed to resolve.