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'The ‘core exemption’ from the fairness test in unfair terms legislation' / Elizabeth Macdonald
Journal of Contract Law, Volume: 2012, Issue: 29, Pages: 121 - 154
Swansea University Author: Elizabeth Macdonald
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EU / UK unfair terms legislation appeared to provide very significant levels of consumer protection. However, its effectiveness depends upon the scope of the exemption from the fairness test of ‘core terms’. The ‘core exemption’ is based on the idea of an area which should be left to be regulated by...
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EU / UK unfair terms legislation appeared to provide very significant levels of consumer protection. However, its effectiveness depends upon the scope of the exemption from the fairness test of ‘core terms’. The ‘core exemption’ is based on the idea of an area which should be left to be regulated by the market because the consumer will have encompassed consideration of those terms in the decision to contract. It is shown that the significant question raised in the cases is whether an ‘assumed’ or an ‘assessed’ approach should be taken to the presence of such consideration. Grave fears for the efficacy of the Regulations have been raised by the Supreme Court’s ‘assumed’ approach. The problem is analysed and potential means of mitigating the impact of the decision are looked at. It is concluded that a demanding ‘assumed’ approach will differ little in its outcomes, from what could have been an appropriate level of ‘assessed’ approach, and that the recommendations in the Law Commissions new Issues Paper (Unfair Terms in Consumer Contracts: a new approach), would produce such an approach. The similar, recent, Australian unfair terms legislation is also considered, and the potential to avoid the problems encountered in the UK is identified.
Hillary Rodham Clinton School of Law