Part II applies to terms in contracts between traders and consumers, called consumer contracts.
It also applies to consumer notices which relate to rights or obligations between a trader and consumer. Notices can be announcements or other methods of communication, they do not have to be in writing.
Does not apply to:
- Contract of employment or apprenticeship,
- To the extent that the term/notice reflects mandatory statutory or regulatory provisions,
- To the extent that the term/notice reflects provisions of international convention extended to Guernsey.
Part II applies to terms used or proposed to be used in consumer contracts and consumer notices.
Consumer notices are notices it is reasonable to assume are intended to be seen by the consumer, which relate to right/obligations between the trader and consumers, or purport to exclude/restrict the trader's liability to consumers. Consumer notices includes signs in shops, announcements over the tannoy etc.
Goods liability that can't be excluded or restricted:
- Satisfactory quality,
- Fit for particular purpose made known,
- As described,
- Part III information,
- Match sample,
- Match model,
- Incorrect installation,
- Digital content in goods doesn't conform,
- Right to supply,
- Delivery,
- Passing of risk.
Digital content liability that can't be excluded or restricted:
- Satisfactory quality,
- Fit for a particular purpose made known,
- As described,
- Part III information,
- Right to supply.
Services liability that can't be excluded or restricted:
- Reasonable care and skill,
- Information about trader is binding,
- Information about service is binding,
- Reasonable price,
- Reasonable time.
Terms cannot:
- Exclude or restrict right or remedy in respect of liability that can't be excluded,
- Make such a right or remedy subject to a restrictive or onerous condition,
- Allow a trader to put someone at a disadvantage for pursuing a right or remedy,
- Exclude or restrict rules of evidence or procedure.
Liability for death or personal injury can't be excluded except for contracts of insurance, creation/transfer of an interest in land, or liability of occupier to premises to person who obtains access to land for recreational purposes where allowing that person access is not within the purposes of the occupier's trade, business, craft or profession.
Otherwise, terms/notices are subject to the fairness test:
Contrary to the requirements of good faith, it causes a significant imbalance in the parties' rights/obligations to the detriment of the consumer. Taking into account:
- Nature of the subject matter
- Circumstances when rights/obligations arose
- Terms of any contract on which it depends
Terms/notices cannot be considered for fairness if they specify the main subject matter of the contract, or if the assessment is of the appropriateness of the price paid, so long as the terms are transparent and prominent.
Schedule 2 - the "grey list"
- Schedule 2 contains an indicative, non-exhaustive list of terms that might be unfair.
- If a term is on the "grey list" it is a good indication that it might be unfair.
Effect of unfair terms/notices
- Unfair terms/notices are not binding on consumers, though they can choose to rely on the terms/notices.
- If a term/notice is capable of having different meanings, the meaning most favourable to the consumer will prevail (except in applications for injunctions).
- Terms must be transparent - expressed in plain intelligible language and be legible.
Requirement for courts to consider unfair terms
- Where proceedings relate to a term of a consumer contract, the court must consider whether the term is unfair, regardless of whether that issue has otherwise been raised, so long as it has enough information to do so.
Enforcement of Part II
- Trading Standards Service can apply for injunctions against and accept undertakings regarding:
- Terms or notices that seek to exclude liability under:
- Part I Chapter I - sale and supply of goods,
- Part I Chapter III - sale or supply of digital content,
- Part I Chapter V - supply of services,
- Terms or notices that seek to exclude liability for death or personal injury resulting from negligence,
- Unfair contract terms or notices,
- Terms that are not in plain and intelligible language or not legible.
- Trading Standards Service may consider complaints about unfair terms/notices.
- Where it does, and chooses not to seek an injunction, it must gives reasons for its decision to the complainant.
