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Unfair Terms & Common Law

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  • Unfair Terms & Common Law

    (Just some thoughts to be kicked around & picked to pieces!!)

    In Common Law, terms in a contract which are particularly onerous have to be fairly brought to the attention of the other party (Thornton v Shoe Lane Parking Ltd.)

    Interfoto Picture Library Ltd. v Stiletto Visual Programmes Ltd.

    Bingham L.J.:
    "The common law has also made it's contribution, by holding that certain cases of contract require the utmost good faith, by treating as irrecoverable what purport to be agreed estimates of damage but are in truth a disguised penalty for breach.........."

    OK, start kicking & picking!!
    CAVEAT LECTOR

    This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb


    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.


    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  • #2
    Re: Unfair Terms & Common Law

    Bairstow Eves London Central Ltd v Smith (2004)

    Para 25 - Particular gratitude is due to the Judge for having himself located the authority of First National Bank. Guided by this authority, the landscape becomes clear. The object of the Regulations [UTCCR] is not price control nor are the Regulations intended to interfere with the parties freedom of contract as to the essential features of their bargain. But, that said, regulation 6(2) must be given a restrictive interpretation; otherwise a coach and horses could be driven through the Regulations. So, while it is not for the Court to re-write the parties bargain as to the fairness or adequacy of the price itself, regulation 6(2) may be unlikely to shield terms as to price escalation or default provisions from scrutiny under the fairness requirement contained in regulation 5(1). I say "may be unlikely" because, of course, much depends on the individual contract under consideration. When, however, regulation 6(2) is inapplicable so that regulation 5(1) is engaged, it does not follow that a term will be adjudged unfair; whether or not a term is unfair involves a separate inquiry but one which cannot be undertaken at all insofar as regulation 6(2) is applicable and bars the way.
    http://www.hmcourts-service.gov.uk/j...arlingtons.htm
    Last edited by hicskis; 5th March 2010, 21:46:PM.
    Disclaimer - This information about the law is designed to help users safely cope with their own legal needs. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although I go to great lengths to make sure my information is accurate and useful, I recommend you consult a lawyer if you want professional assurance that my information, and your interpretation of it, is appropriate to your particular situation.

    Comment


    • #3
      Re: Unfair Terms & Common Law

      Re 'historical' T & Cs, I have seen several which state that going into 'unauthorised' is a breach. (One example below - also one posted by Tuttsi, but I can't find it - will keep looking)

      http://www.legalbeagles.info/forums/...ad.php?t=20784 (Para 9.4)

      If the term is in connection with a breach, then can it be assessed in equity for fairness (maybe even 'in terrorem')

      http://en.wikipedia.org/wiki/UK_defa...es_controversy
      CAVEAT LECTOR

      This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

      You and I do not see things as they are. We see things as we are.
      Cohen, Herb


      There is danger when a man throws his tongue into high gear before he
      gets his brain a-going.
      Phelps, C. C.


      "They couldn't hit an elephant at this distance!"
      The last words of John Sedgwick

      Comment


      • #4
        Re: Unfair Terms & Common Law

        I guess what I'm trying to get at here is that many of the legal arguments I have seen are concerned with Contract Law - & the Courts seem reluctant to upset the 'status quo' (after all, it's every man's right to enter into a bad bargain - the old law of 'Assumpsis' lol)
        But contractual duties & tortious duties can co-exist, & it may be another avenue to explore.
        For instance, given an implied duty of care, would witholding payment of an 'instruction to pay' (which would benefit the customer at least in part) whjle at the same time imposing a 'charge' which only benefits the stronger party in the contract (ie the bank), be negligent (or worse)! - especially when if causes further 'charges on charges'

        Henderson v Merrett Syndicates [1994] 3 All E.R. 506
        Hedley Byrne & Co v Heller & Partners [1964] A.C. 465


        (Don't shoot me, I'm only trying lol!!)
        CAVEAT LECTOR

        This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron)

        You and I do not see things as they are. We see things as we are.
        Cohen, Herb


        There is danger when a man throws his tongue into high gear before he
        gets his brain a-going.
        Phelps, C. C.


        "They couldn't hit an elephant at this distance!"
        The last words of John Sedgwick

        Comment

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