6.3 The core exemption
Certain terms are exempt from the test for fairness. Section 64 provides that:
A term of a consumer contract may not be assessed for fairness … to the extent that–
- a.it specifies the main subject matter of the contract, or
- b.the assessment is of the appropriateness of the price payable under the contract by comparison with the goods, digital content or services supplied under it.
Section 64 further provides that this excludes a term from an assessment only if it is ‘transparent and prominent’. For this purpose:
- 64(3) A term is transparent … if it is expressed in plain and intelligible language and (in the case of a written term) is legible.
- 64(4) A term is prominent … if it is brought to the consumer's attention in such a way that an average consumer would be aware of the term.
- 64(5) In subsection (4) ‘average consumer’ means a consumer who is reasonably well-informed, observant and circumspect.
The exclusion which s. 64 provides is specified as not applying to a term in the list of ‘indicative terms’ provided by Pt 1 of Schedule 2.
The indicative terms are known as the core exemptions. The rationale for this exemption is that such key terms are known to the consumer who is then able to make an informed choice whether or not to accept them. Market forces should also play a part in ensuring such key terms are fair – if they are not, consumers will take their business elsewhere (Law Commission, 2012, para. 4.22).