UTCA
Let’s focus firstly on the UTCA 1977 (Unfair Contractual Terms Act). It was a Statutory intervention brought into existence in the United Kingdom in attempt to increase the power for the courts and its judges to invalidate certain unfair terms (exclusion clauses), where applicable. Before it’s introduction, judges declared that they had no power to invalidate unfair terms (except duress/ undue influence) because people saw that it would have been a direct violation of freedom of contract (generally seen as a virtue). However, with the growing number of transactions and contracts being made, certain organisations took advantage of this and incorporated terms that were vastly unfair in the contracts that they issued to their consumers. The courts could only rely on certain indirect means of control with the Common Law to limit such occurrences at the time (The ‘3 hurdles of incorporation of terms into contract’ and ‘contra proferentem’). The judges actions against unfair terms needed to be backed up by something more solid and direct and this is why the UCTA was introduced. ... 1 (3): that is liability for breach of obligations or duties arising-
a) from things done or to be done by a person in the course of a business (whether his own business or another); or
b) from the occupation of premises used for business purposes of the occupier
There were in addition special rules for contracts where one party deals as a consumer:
s. 12 (1): A party to a contract deals as a consumer in relation to another party if-
a) he neither makes the contract in the course of a business nor holds himself out as doing so; and
b)the other party does make the contract in the course of a business; and
c) in the case of a contract governed by the law of sale of goods or hire-purchase, or by section 7 of this act, the goods passing under or in pursuance of the contract are of a type ordinarily supplied for private use or consumption.
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