No Cover Image

Journal article 1324 views

'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

Full text not available from this repository: check for access using links below.

Abstract

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...

Full description

Published in: Journal of Contract Law
ISSN: 1030-7230
Published: 2012
Online Access: Check full text

URI: https://cronfa.swan.ac.uk/Record/cronfa13320
Tags: Add Tag
No Tags, Be the first to tag this record!
first_indexed 2013-07-23T12:10:00Z
last_indexed 2019-06-12T19:29:05Z
id cronfa13320
recordtype SURis
fullrecord <?xml version="1.0"?><rfc1807><datestamp>2019-06-12T17:21:28.4689633</datestamp><bib-version>v2</bib-version><id>13320</id><entry>2012-11-21</entry><title>'The &#x2018;core exemption&#x2019; from the fairness test in unfair terms legislation'</title><swanseaauthors><author><sid>a63a909e63c139a6816c06d3d6776339</sid><firstname>Elizabeth</firstname><surname>Macdonald</surname><name>Elizabeth Macdonald</name><active>true</active><ethesisStudent>false</ethesisStudent></author></swanseaauthors><date>2012-11-21</date><deptcode>FGHSS</deptcode><abstract>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 &#x2018;core terms&#x2019;. The &#x2018;core exemption&#x2019; 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 &#x2018;assumed&#x2019; or an &#x2018;assessed&#x2019; 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&#x2019;s &#x2018;assumed&#x2019; approach. The problem is analysed and potential means of mitigating the impact of the decision are looked at. It is concluded that a demanding &#x2018;assumed&#x2019; approach will differ little in its outcomes, from what could have been an appropriate level of &#x2018;assessed&#x2019; 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.</abstract><type>Journal Article</type><journal>Journal of Contract Law</journal><volume>2012</volume><journalNumber>29</journalNumber><paginationStart>121</paginationStart><paginationEnd>154</paginationEnd><publisher/><issnPrint>1030-7230</issnPrint><keywords/><publishedDay>31</publishedDay><publishedMonth>12</publishedMonth><publishedYear>2012</publishedYear><publishedDate>2012-12-31</publishedDate><doi/><url/><notes/><college>COLLEGE NANME</college><department>Humanities and Social Sciences - Faculty</department><CollegeCode>COLLEGE CODE</CollegeCode><DepartmentCode>FGHSS</DepartmentCode><institution>Swansea University</institution><apcterm/><lastEdited>2019-06-12T17:21:28.4689633</lastEdited><Created>2012-11-21T10:02:05.3930608</Created><path><level id="1">Hillary Rodham Clinton School of Law</level><level id="2">Law</level></path><authors><author><firstname>Elizabeth</firstname><surname>Macdonald</surname><order>1</order></author></authors><documents/><OutputDurs/></rfc1807>
spelling 2019-06-12T17:21:28.4689633 v2 13320 2012-11-21 'The ‘core exemption’ from the fairness test in unfair terms legislation' a63a909e63c139a6816c06d3d6776339 Elizabeth Macdonald Elizabeth Macdonald true false 2012-11-21 FGHSS 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. Journal Article Journal of Contract Law 2012 29 121 154 1030-7230 31 12 2012 2012-12-31 COLLEGE NANME Humanities and Social Sciences - Faculty COLLEGE CODE FGHSS Swansea University 2019-06-12T17:21:28.4689633 2012-11-21T10:02:05.3930608 Hillary Rodham Clinton School of Law Law Elizabeth Macdonald 1
title 'The ‘core exemption’ from the fairness test in unfair terms legislation'
spellingShingle 'The ‘core exemption’ from the fairness test in unfair terms legislation'
Elizabeth Macdonald
title_short 'The ‘core exemption’ from the fairness test in unfair terms legislation'
title_full 'The ‘core exemption’ from the fairness test in unfair terms legislation'
title_fullStr 'The ‘core exemption’ from the fairness test in unfair terms legislation'
title_full_unstemmed 'The ‘core exemption’ from the fairness test in unfair terms legislation'
title_sort 'The ‘core exemption’ from the fairness test in unfair terms legislation'
author_id_str_mv a63a909e63c139a6816c06d3d6776339
author_id_fullname_str_mv a63a909e63c139a6816c06d3d6776339_***_Elizabeth Macdonald
author Elizabeth Macdonald
author2 Elizabeth Macdonald
format Journal article
container_title Journal of Contract Law
container_volume 2012
container_issue 29
container_start_page 121
publishDate 2012
institution Swansea University
issn 1030-7230
college_str Hillary Rodham Clinton School of Law
hierarchytype
hierarchy_top_id hillaryrodhamclintonschooloflaw
hierarchy_top_title Hillary Rodham Clinton School of Law
hierarchy_parent_id hillaryrodhamclintonschooloflaw
hierarchy_parent_title Hillary Rodham Clinton School of Law
department_str Law{{{_:::_}}}Hillary Rodham Clinton School of Law{{{_:::_}}}Law
document_store_str 0
active_str 0
description 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.
published_date 2012-12-31T03:22:58Z
_version_ 1737024631938744320
score 10.887713