Supply of Goods (Implied Terms) Act 1973

12 Exclusion of implied terms and conditions

(1) An express condition or warranty does not negative a condition or warranty implied by this Act unless inconsistent therewith.

(2) A term of a hire purchase agreement or any other agreement exempting from all or any of the provisions of section 8 above shall be void.

(3) A term of a hire purchase agreement or any other agreement exempting from all or any of the provisions of section 9, 10 or 11 above shall be void in the case of a consumer agreement and shall, in any other case, not be enforceable to the extent that it is shown that it would not be fair or reasonable to allow reliance on the term.

(4) In determining for the purpose of subsection (3) above whether or not reliance on any such terms would be fair or reasonable regard shall be had to all the circumstances of the case and in particular to the following matters—

(a) the strength of the bargaining positions of the owner and hirer relative to each other, taking into account, among other things, the availability of suitable alternative products and sources of supply ;

(b) whether the hirer received an inducement to agree to the term or in accepting it had an opportunity of acquiring the goods or suitable alternatives without it from any source of supply;

(c) whether the hirer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);

(d) where the term exempts from all or any of the provisions of section 9, 10 or 11 above if some condition is not complied with, whether it was reasonable at the time of the agreement to expect that compliance with that condition would be practicable ;

(e) whether the goods were manufactured, processed or adapted to the special order of the hirer.

(5) Subsection (4) above shall not prevent the court from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any of the provisions of section 9, 10 or 11 above is not a term of the hire-purchase agreement.

(6) In this section " consumer agreement" means a hire-purchase agreement where the owner makes the agreement in the course of a business and the goods to which the agreement relates—

(a) are of a type ordinarily supplied for private use or consumption ; and

(b) are hired to a person who does not hire or hold himself out as hiring them in the course of a business.

(7) The onus of proving that a hire-purchase agreement falls to be treated for the purposes of this section as not being a consumer agreement shall lie on the party so contending.

(8) Any reference in this section to a term exempting from all or any of the provisions of any section of this Act is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of all or any of the provisions of that section, or the exercise of a right conferred by any provision of that section, or any liability of the owner for breach of a condition or warranty implied by any provision of that section.

(9) It is hereby declared that any reference in this section to a term of an agreement includes a reference to a term which although not contained in an agreement is incorporated in the agreement by another term of the agreement.