ABSTRACT
Indeed the proposed new test would make it even clearer that both substantive and procedural factors must be taken into account. It would refer explicitly to the ‘substance and effect of the term’; ‘transparency’; and the circumstances in existence at the time the contract was made.9 The latter ‘circumstances’ include matters relating to the broader substantive interests of the parties and matters relating to choice and bargaining power.10 Clear identification of these factors is, in itself, an important move forward; as is the fact that there would be guidelines on all of these matters11 (to which guidelines we shall return below). 6.3 Criteria Related to the Substance of the Terms 6.3.1 Introduction The first thing which we need to do is to try to unpack the various ways in which the law seems to look at substantive issues and how this will be developed under the proposed new regime. We have already dealt with the first element of the way in which the law approaches unfairness in substance (i.e. by targeting terms that deviate from default rules to the detriment of the consumer or provide for trader or consumer obligations that do not reflect the reasonable expectations of the consumer). So where do we go from here? A full review of substance would also surely look at the extent to which the term deviates from the default position or allows for compromise of reasonable expectations; and then at the type of consumer and trader interests that are affected (including the insurance context); and the broader substantive context (including, for example, the 5 See Law Commission Report No. 292, p. 41 and Draft Bill, Clause 4(1). 6 See Smith v. Bush [1990] 1 AC 831and above at 4.61-2. 7 Recital 16. 8 See above at 5.5.4.2(3). 9 Law Commission Report, p. 42 and Draft Bill, Clause 14(1)(a) and (b).
