Contract terms that may be unfair

Terms that are always unfair

Consumer law says that certain terms are automatically unfair. This means that an unfairness assessment is not required for these terms. These terms are commonly known as the ‘Black list’.

Black list

1. A term that excludes or limits the liability of a business when a consumer dies or suffers serious injury due to their actions/omissions
2. A term that requires a consumer to pay for goods/services they did not receive
3. A term that imposes a burden of proof on a consumer that the law says should be with a business
4. A term that prevents or hinders a consumer’s right to take a legal action or exercise a legal remedy. including by requiring the consumer to take disputes to arbitration that is not governed by law
5. A term that requires a consumer to bear their own costs for arbitration
6. A term that gives a business the exclusive right to decide that goods/services conform to the contract
7. A term that gives a business the exclusive right to interpret any contract term
8. A term where the business has a shorter notice period to end the contract than the consumer
9. A term that grants exclusive jurisdiction for contract disputes to a court where the business is based even though the consumer does not live there

Terms that may be unfair

Consumer law outlines terms that may be unfair, which are detailed in a ‘Grey list’.  Consumer law requires that an assessment is carried out to determine if these terms are unfair. The ‘Grey list’ is intended as a guide to the terms that may be unfair. It should not be regarded as a complete list of the contract terms that may be unfair.

 

Grey list

1. A term that prevents/limits a consumer’s legal rights when a business does not/inadequately performs their contractual obligations
2. A term that makes an agreement binding on the consumer but providing the goods/services by the business is subject to a condition whose realisation depends on the businesses will alone.
3. A term where a business can keep payments from the consumer when they end the contract but if the business cancels the contract, the consumer will not receive the same type of compensation
4. A term where the consumer must pay the business a high level of compensation for goods/services they have not supplied when the consumer ends the contract
5. A term where the consumer must pay the business a high level of compensation when they do not meet their contractual obligations
6. A term where a business can end a contract on a discretionary basis but the same option is not available to the consumer
   or
   A term where a business can keep payments for goods/services that the consumer has not received when the business ends the contract
7. A term where a business can end a contract of indefinite duration without reasonable notice, except when there are serious grounds for doing so
8. A term when the consumer ends the contract that allows a business to keep a payment due to a third party as part of a contractual obligation or mandatory statutory/regulatory provision
9. A term that automatically extends a contract of fixed length when the consumer does not say otherwise, where there is an unreasonably early deadline for the consumer not to extend the contract
10. A term that binds the consumer to terms they had no real opportunity to understand fully before the contract was agreed
11. A term that allows a business to alter the terms of the contract without a valid reason, which is specified in the contract.
12. A term that allows a business to alter any characteristics of the goods/services covered in a contract without a valid reason
13. A term where a business can decide the price after the consumer has agreed the contract where no price, or method of determining the price, has been agreed with the consumer before the contract is agreed
14. A term that allows the price to be decided at the time of delivery or supply
    or
    A term where the business can increase the price without giving the consumer the right to cancel the contract if they decide that the price rise is too high
15. A term that limits a business’s obligations for commitments provided by their agents makes the business’s commitments subject to compliance with a particular formality
16. A term where the consumer has to fulfil all their obligations, when the business does not perform their obligations
17. A term where a business can transfer contractual rights and obligations that may reduce the consumers guarantees, without the agreement of the consumer
18. A term that requires a consumer to pay a fee to exercise a statutory right
19. A term where the consumer must have a valid reason before they can obtain repairs or spare parts from another business
20. A term that imposes disproportionate requirements on the consumer when they want to end a contract
21. A term where the consumer has to make excessive advance payments or provide excessive guarantees on the performance of future obligations
22. A term that restricts the information the business provides to the consumer on the performance of the contract
23. A term that requires the consumer to restrict their rights as data subject under the Data Protection Acts 1988 to 2018, or the General Data Protection Regulation