ABSTRACT
A blanket prohibition on exemptions relating to negligence causing death or injury in any business context is easy enough to comprehend and is in direct line of succession from a number of earlier statutes concerning the carriage of passengers by rail, or by road in a public service vehicle.61 The prohibition on disclaimers in consumer guarantees reflects the Law Commission recommendation in para 100 of the Second Report on Exemption Clauses (1975, No 69), which stated that ‘it is obvious that cases can arise in which [the buyer] will have abandoned rights far more valuable than those he has gained. Such an exemption clause is a potential trap, and we think it should be made void’. The provisions in ss 6 and 7 concerning consumers either re-enact (in s 6) provisions in the Supply of Goods (Implied Terms) Act 1973 or provide for analogous provisions concerning (s 7) the supply of goods under contracts of hire, work and materials (for example, a building contract or a repair contract). The key definition of ‘dealing as a consumer’ under s 12 was discussed earlier. Again all this reflects Law Commission views (here in the First Report, Law Com No 24, 1969). At para 68, the Commission stated that:
.... the Molony Committee [viewed] the practice of contracting out as a general threat to consumer interest [the working party] found an overriding argument in favour of prohibiting ‘contracting out’. The mischief was that this practice enabled well organised commerce ‘consistently to impose unfair terms on the consumer, and to deny him what the law means him to have ...
