ABSTRACT
In English law, the judicial response to unfair terms has been indirect. The English judiciary has shunned a general jurisdiction to pronounce on the fairness of bargains. Terms that have been individually negotiated are untouched. Earlier drafts of the Directive had proposed a wider control, but criticism of intervention into terms individually agreed by the parties resulted in the more modest reach of the Directive as finally adopted. The Unfair Contract Terms Act 1977 invalidates some clauses absolutely and subjects others to a judicially applied test of reasonableness. If the European Court develops a distinctive interpretative approach to the control test, any consequent gulf between the Act and the Regulations implementing the Directive will require closing by careful handling at domestic level. Private sales are caught, although the use of exclusion clauses in such transactions is doubtless uncommon; in any event the statutorily implied terms have a limited role to play in private transactions.
