ABSTRACT
Introduction to the Fairness Regimes 3.1 Introduction This chapter sets out the basic features of the fairness-oriented regimes contained in the Unfair Contract Terms Act (UCTA) 1977 and the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999. It also explains the proposal to repeal these pieces of legislation and replace them with a single piece of legislation. It then considers the ways in which the law should and may be affected by the broader legal and policy background, by the ECJ and by the fairness traditions of other Member States. 3.2 The Existing Law and the Future – in Brief The UCTA regulates only terms affecting the obligations and liabilities of the trader to the consumer (so called ‘exemption clauses’).1 By contrast the UTCCR2 regulates these terms as well as terms affecting the obligations and liabilities of the consumer to the trader. The UCTA was passed after the Law Commissions reports of 1969 and 1975.3 These reports had been a response to the obvious problems caused by exemption clauses and the limited ability of the common law to address these problems.4 The UTCCR are an updated version of the UTCCR 1994. These were passed in order to implement the EC Directive on Unfair Terms in Consumer Contracts of 1993.5 At present the two regimes exist 1 It is mainly concerned with terms ‘excluding or restricting liability’ – see s. 13 for a
side by side. However, the Law Commissions have proposed that the two regimes should be repealed and replaced by a new regime.6 A key reason for this is to remove the uncertainty that may be caused by the existence of two regimes that overlap, but also differ, in terms of scope of application, effects, concepts and terminology.7
