PART 2Unfair terms
What are the general rules about fairness of contract terms and notices?
62Requirement for contract terms and notices to be fair
(1)
An unfair term of a consumer contract is not binding on the consumer.
(2)
An unfair consumer notice is not binding on the consumer.
(3)
This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.
(4)
A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.
(5)
Whether a term is fair is to be determined—
(a)
taking into account the nature of the subject matter of the contract, and
(b)
by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.
(6)
A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer.
(7)
Whether a notice is fair is to be determined—
(a)
taking into account the nature of the subject matter of the notice, and
(b)
by reference to all the circumstances existing when the rights or obligations to which it relates arose and to the terms of any contract on which it depends.
(8)
This section does not affect the operation of—
(a)
section 31 (exclusion of liability: goods contracts),
(b)
section 47 (exclusion of liability: digital content contracts),
(c)
section 57 (exclusion of liability: services contracts), or
(d)
section 65 (exclusion of negligence liability).