EVOLUTION OR REVOLUTION? UNFAIR TERMS IN CONSUMER CONTRACTS

2002 ◽  
Vol 61 (1) ◽  
pp. 1-52 ◽  
Author(s):  
Catharine MacMillan
Keyword(s):  
Director General ◽  
Fair Trading ◽  
Council Directive ◽  
House Of Lords ◽  
Unfair Term ◽  
Injunctive Relief ◽  
Contractual Term ◽  
Consumer Contracts ◽  
National Bank ◽  
Unfair Terms

DIRECTORGeneral of Fair Trading v. First National Bank plc [2001] 1 UKHL 52, [2001] 3 W.L.R. 1297 marks the beginning of an evolution in the common law of contract. The House of Lords considered for the first time whether a contractual term was an unfair term under the Unfair Terms in Consumer Contracts Regulations 1994, S.I. 1994/3159 (which implemented Council Directive (EEC) 93/13, now implemented by the Unfair Terms in Consumer Contracts Regulations 1999, S.I. 1999/2083). The case arose when the Director General sought injunctive relief, pursuant to regulation 8(2), to restrain the use of a contractual term.

IMPROVING THE LAW ON UNFAIRNESS

2000 ◽  
Vol 59 (2) ◽  
pp. 235-272
Author(s):  
Neil Beresford
Keyword(s):  
Case Law ◽  
Director General ◽  
Appellate Court ◽  
Fair Trading ◽  
Consumer Contracts ◽  
National Bank ◽  
The Law ◽  
Unfair Terms ◽  
Court Of Appeal

IN five years on the statute book, the Unfair Terms in Consumer Contracts Regulations 1994, S.I. 1994/3159, generated great interest and very little case law. Their first consideration by an appellate court came in Director General of Fair Trading v. First National Bank plc [2000] 1 All E.R. (Comm.) 371. And while these proceedings were on their way to the Court of Appeal, the Regulations were repealed and replaced by the Unfair Terms in Consumer Contracts Regulations 1999, S.I. 1999/2083. Both developments are of considerable interest.

Winning the battle against unfair contract terms

Legal Studies ◽  
2000 ◽  
Vol 20 (3) ◽  
pp. 331-352 ◽  
Author(s):  
Susan Bright
Keyword(s):  
Director General ◽  
Fair Trading ◽  
Economic Sectors ◽  
Judicial Decisions ◽  
First Case ◽  
Highly Effective ◽  
Consumer Contracts ◽  
Continued Use ◽  
Unfair Terms

The Director General of Fair Trading has recently won the first case seeking an injunction to restrain the continued use of unfair terms in consumer contracts. This represents only the tip of the iceberg in terms of the activity of the Unfair Contract Terms Unit established to enforce the Unfair Terms in Consumer Contracts Regulations. The sparsity of reported judicial decisions does not mean that the Regulations have been ineffective; far from it, numerous contracts across a variety of economic sectors have been amended following complaints made under the Regulations. It may still be early days in the battle against unfair contract terms but, as will be shown, the Regulations are proving to be a highly effective weapon in the consumer's armoury.

scholarly journals UNFAIR TERMS IN CONSUMER CONTRACTS

2019 ◽  
pp. 67-70
Author(s):  
H. B. Yanovytska
Keyword(s):  
Good Faith ◽  
The European Union ◽  
National Legislation ◽  
Council Directive ◽  
Unfair Term ◽  
Provision Of Services ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
Contractual Rights ◽  
Exhaustive List

The article deals with the concepts and signs of unfair terms in contracts with the participation of consumers. National legislation contains a warning that the seller (performer, manufacturer) has no right to offer in the contract and include unfair terms. In the European Union, such relationships are governed by Council Directive 93/13/EEC of 5 April 1993 On Unfair Terms in Consumer Contracts,which is horizontal in scope and applies to contracts to which the consumer and the seller/supplier are parties. The Directive states that an unfair term is recognized as a condition of a contract that was not individually negotiated, if, for breach of the requirement of good faith, it causes significant discrepancies in the rights and obligations of the parties arising from the contract, to the detriment of the consumer. Unlike national legislation, the Directive contains an exhaustive list of unfair terms. For example,conditions having a purpose or intention: a) to exclude or limit the legal liability of the seller or supplier in the event of death or injury to the consumer because of the activity or inaction of such a seller or supplier. b) to conclude an agreement that will oblige the consumer, according to which the provision of services by the seller or supplier will depend on the personal desire of the latter. c) automatically extend the contract of the specified duration, when the consumer does not show the opposite desire, if the specified deadline for the expression of the consumer’s desire is unreasonably short, etc. Such a list of conditions that may be considered unfair is inexhaustible. A study of national legislation shows that unfair terms of the contract violate the principle of good faith and lead to a significant imbalance of contractual rights and obligations and cause harm to the consumer. The presence of these conditions is the basis for their recognition as invalid, and in some cases invalidation of the contract as a whole.

scholarly journals Unfair Terms in Loan Agreements Connected with Foreign Currency. Comment to the Judgement in Case C-186/16 Ruxandra Paula Andriciuc e.a. contre Banca Românească SA

2020 ◽  
Vol 9 (2) ◽  
pp. 201-214
Author(s):  
Małgorzata Sieradzka
Keyword(s):  
Foreign Currency ◽  
National Court ◽  
Main Subject ◽  
Total Cost ◽  
Future Performance ◽  
Council Directive ◽  
Contractual Term ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
Banking Institution

In the judgment under appeal, the referring court asked the Court in the context of proceedings between a banking institution and several individual borrowers, the interpretation to be given to Article 3(1) and Article 4(2) of Directive 93/13/EEC Council Directive of 5.4.1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29–34). The Court indicated that a term such as that at issue in the main proceedings, incorporated into a loan agreement concluded in a foreign currency between a seller or supplier and a consumer without being individually negotiated, on terms by which the loan must be repaid in the same currency, is covered by the notion of ‘main subject matter of the contract’ within the meaning of Article 4(2) of Directive 93/13. Furthermore, it is for the national court, upon considering all the circumstances surrounding the conclusion of the contract, to ascertain whether, in the case concerned, all the information likely to have a bearing on the extent of this commitment had been communicated to the consumer, enabling him/her to estimate in particular the total cost of his/her loan. The Court accepted in a judgment that Article 3(1) of Directive 93/13 must be interpreted as meaning that the assessment of the unfairness of a contractual term must be made by reference to the time of conclusion of the contract at issue, taking account all of the circumstances which could have been known to the seller or supplier at that time, and which were such as to affect the future performance of that contract. 

scholarly journals Review of the New Polish Model of Abstract Control of Standard Forms of Agreements Concluded with Consumers

2016 ◽  
Vol 9 (14) ◽  
pp. 247-264
Author(s):  
Paulina Korycińska-Rządca
Keyword(s):  
Consumer Protection ◽  
Effective Means ◽  
Substantial Part ◽  
New Model ◽  
Legal Rules ◽  
Council Directive ◽  
Consumer Contracts ◽  
Court Proceedings ◽  
Unfair Terms ◽  
Administrative Proceedings

The Polish Act of 5 August 2015 amending the Act on Competition and Consumer Protection and certain other acts introduced several changes intended to strengthen consumer protection. Its substantial part concerns the abstract control of standard forms of agreements concluded with consumers. The Amendment Act of 2015 has completely changed the previous model of abstract control of standard forms of agreements concluded with consumers by replacing the court proceedings model with the administrative proceedings model. This article presents an analysis of Polish legal rules on the abstract control of standard forms of agreements concluded with consumers as amended by the Amendment Act of 2015. Its purpose is to verify whether the new Polish model may be deemed as an appropriate and effective means of preventing the continued use of unfair terms, within the meaning of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. The paper analyses the legal rules on the new model of abstract control of standard forms of agreements concluded with consumers (the administrative proceedings model) and compares the new model with its predecessor (the court proceedings model). The paper does not cover the remaining changes introduced into the Polish Competition Act of 2007 by the Amendment Act of 2015, which are not connected to abstract control of standard forms of agreements concluded with consumers.

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