- A party may only exclude liability for misrepresentation where it is
reasonable to do so – section 8, and also section 3 of the Misrepresentation
Act 1967.
The Unfair Terms in Consumer Contract
Regulations 1999
Again, Britain’s membership of the European Union has had an effect on
consumer protection, this time via the European Directive on Unfair Terms
in Consumer Contracts. This was incorporated in the Unfair Terms in
Consumer Contract Regulations 1999. Terms are considered to be unfair
which are ‘significant to the detriment of the consumer’, and ‘contrary to
the requirement of good faith’.
Reasonableness is interpreted to mean fair given the circumstances
known to the parties at the time, and given the resources to meet the
liability. The possibility of insurance may also be taken into account. Other
factors which the court may take into account include:
- the bargaining power of the parties, and whether an alternative source
was available - any inducement to agree to the term, such as a favourable price
- trade custom and previous dealings
- the difficulty of the task
- whether the goods are adapted to the order of the customer.
For more detail on cases concerning unfair terms and the new regulations,
see Chapter 8.
Consumer protection other than through the law of contract
It should be noted that while much of the law of consumer protection is
based in the law of contract, other measures exist to protect the consumer
and may prove useful, particularly where a claim in contract law would be
unsuccessful or inconvenient.
Negligence
For a claim in negligence it must be established that there was:
- A duty of care owed to the injured party: Donoghue v Stevenson (1932)
- where a claim succeeded against a manufacturer of ginger beer by a
consumer who became ill after drinking the remains of a decomposed
snail. See also Bourhill v Young (1943) regarding forseeability of injury.
- where a claim succeeded against a manufacturer of ginger beer by a
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