Exclusion clauses
Exclusion clauses

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Exclusion clauses

6.1 When does CRA 2015 apply to exclusion clauses?

The CRA 2015 extends the protection given to consumers under the UCTCCR 1999. It does this in several ways:

  • By enlarging the category of persons protected by the requirements of fairness and plain, intelligible language by imposing a requirement that any exclusion be ‘prominent’ as well as transparent. This effectively confirms the contra proferentem rule discussed in Section 3.2
  • By broadening the definition of ‘consumer’ to an individual ‘acting for purposes that are wholly or mainly outside that individual's trade’: ss. 2(3) and 76
  • By including individually negotiated terms under the test of unfairness, whereas as before the Act they were excluded, and
  • By imposing an additional requirement of fairness to terms relating to the main subject matter of the contract or the price/quality ratio in response to comments made by the Supreme Court in the Abbey National Plc v The Office of Fair Trading [2009] UKSC 6; [2010] 1 A.C. 696
  • By expanding an ‘indicative list’ of terms which may be unfair and which are thereby specifically excluded from the possible application of the exemption for terms on the main subject matter and relating to the price.

The CRA 2015 only applies to contracts concluded between a trader and a consumer (s. 2). These terms are defined in s. 2 CRA 2015.

A ‘trader’ means a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another person acting in the trader's name or on the trader's behalf.

A ‘consumer’ means an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession.

One consequence of using the term ‘trader’ is that it avoids the implication that contracts by which consumers supply goods or services to traders are necessarily excluded from the controls on unfair contract terms. Thus avoiding the issues that arose in R&B Customs Brokers Co Ltd v United Dominions Trust Ltd [1988] 1 All ER 847.

There is a burden of disproof on the trader. In other words if a party is asserting they are a consumer entitled to the protections in the Act, the burden is on the trader to prove that the other party is not a consumer.

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