very wide range of clauses other than exemption clauses. Scrutiny of Sched 2 indicates control of penalty clauses, forfeiture clauses and a wide range of ‘non-negotiated’ terms well beyond the exemption clause field (and this is only an indicative and non-exhaustive list!). However, secondly, unlike the 1977 Act, the Regulations only cover consumer contracts. Thirdly, the key test of good faith superficially differs from the reasonableness test in the 1977 Act. Given that the two sets of provisions stand side by side, there is the possibility, at least, of a term being valid under the 1977 Act, but invalid under these Regulations (or vice versa).

doi:10.4324/9781843141518-204

Chapter

No Image Available

Chapter

very wide range of clauses other than exemption clauses. Scrutiny of Sched 2 indicates control of penalty clauses, forfeiture clauses and a wide range of ‘non-negotiated’ terms well beyond the exemption clause field (and this is only an indicative and non-exhaustive list!). However, secondly, unlike the 1977 Act, the Regulations only cover consumer contracts. Thirdly, the key test of good faith superficially differs from the reasonableness test in the 1977 Act. Given that the two sets of provisions stand side by side, there is the possibility, at least, of a term being valid under the 1977 Act, but invalid under these Regulations (or vice versa).

ABSTRACT

In the previous edition of this book, it was stated that: Finally, and of crucial importance, is the way in which the courts will use their wide new powers. A judge with a ‘Denning’ or ‘Bingham’ breadth of perspective will, presumably, feel very comfortable with these provisions, but others may not. Will it be the case that an infinite number of one-off pragmatic decisions are made, as is already the danger with the reasonableness test? Alternatively will appeal courts attempt to give some guidance on phrases such as ‘plain, intelligible language’, ‘significant imbalance’ or even good faith? May there even be the admission into our courts of comparative jurisprudence, particularly from the civil law countries where many of these concepts are already part of the legal culture? If so, the comment by Hugh Collins85 that ‘The first whiffs of smoke from the furnaces of European Community Law have now trailed over general contract law’ could underestimate the significance of these provisions.