ABSTRACT
The Transformation 8.1 The Basic Conceptual Transformation – Introduction Taking the UCTA and the UTCCR together (or thinking purely of the proposed new regime), we can identify a transformation in approach from that taken by the common law and equity. It is not that common law and equity did not recognize any of the fairness problems described or take any steps to address them. In Suisse Atlantique SA v. Rotterdamsche Kolen Centrale Lord Reid recognized the procedural problems arising in standard form contracts. He said that:
The problem was that the tools at hand (or that the courts were prepared to develop) were inadequate in various respects. Essential to the current legislative approach (taking both regimes together) are three components. First, there is a broad review of procedural and substantive fairness applicable to all or most terms that either exclude or restrict the obligations or liabilities that would otherwise be owed by the trader; add to those that would otherwise be owed by the consumer; or provide for either party to perform in a way that does not reflect the reasonable expectations of the consumer. Terms do not get to fall through the net on arbitrary grounds. These fairness benchmarks provide a bit of focus and certainty. At the same time the tests are flexible enough to catch existing and previously unnoticed mischiefs or future types of term that develop. The second key feature of the regimes is that, although the standards may sometimes be in congruence with the market they are not dominated by the market. The idea is not to follow market practice in relation to fairness, but to set independent and usually high standards of fairness that reflect the morality of the community as a whole. This means, for
example, that there is no need for extreme deviation from the default position or deviation that is greater than what is normal in the market; and that the standards of procedural fairness are based on what is needed to allow the average consumer to protect his interests, not what is normal practice. The third essential element is that a term is not made fair by the good conscience of the trader. The standard is an objective one, based on an objective analysis of substance and procedure.
