Unifying Unfair Terms Legislation
There are two major pieces of UK legislation which focus on unfair terms the Unfair Contract Terms Act 1977 (UCTA) and the Unfair Terms in Consumer Contracts Regulations 1999' (the Regulations). For over twenty-five years UCTA has been rendering exemption clauses in consumer and business contracts ineffective, either automatically or because they fail a reasonableness test. In the consumer context the Regulations apply a fairness test to non-individually negotiated terms more generally and have been seen as 'turning on its head ... the general duty of the lawyer to draft wholly and exclusively in the interests of the client'.2 UCTA and the Regulations are probably the two single most significant pieces of legislation in the field of contract law in the UK. Together they provide a powerful weapon against unfair terms. Unfortunately, they are completely unrelated to each other. Each individually is not an easy piece of legislation to understand and the complexities become considerable when their differences and overlaps fall to be considered. It is therefore to be welcomed that the Law Commissions have now ventured into this maze with a consultation document. Its terms of reference