ABSTRACT

The Unfair Contract Terms Act 1977 was a major breakthrough in the control of unfairly wide exemption, limitation and disclaimer clauses. However, as already stated, it is neither logical in structure, nor always consistent in approach. Moreover its name is a serious misnomer, being doubly misleading. First, the legislation has a wider sweep than merely the regulation of contractual exemptions. As the discussion of Smith v Bush indicates, ss 1(1)(b), (c), (3) and (2) in combination bring the important field of non-contractual disclaimers within the Act. On the other hand, it has little to do with unfair terms as such, but only those terms which are unfair because they exempt too unreasonably or limit liability too severely. The name of the original Bill (the Avoidance of Liability Bill) probably captures the essence of the legislation more accurately. The usual view is that the name was changed as part of the debate (which had already commenced in the mid-1970s) about the harmonisation of laws within the European Community on unfair consumer contracts (see below).