The EU has the "Unfair Contract Terms Directive", which means contracts which are just presented to you as a consumer are not always valid. It lists things are "unfair" and hence not binding. e.g. enablying the seller to alter the terms. When deciding if a contract term is fair, it must be decided on the side of the consumer.
falling on the side of consumers (as we mostly do here in the EU) isn't the right solution either. I don't think this is about a contract being fair. Some laws about legal agreements are ok, but they aren't the tool for this job. At least not in my opinion.
I think before you can determine if a contract is fair, you need to determine if a contract is even a contract. If a standard contract is "agreed" between some company (Apple, this hotel, etc) and all of their consumers and some unacceptably high number of those customers don't now the content of this contract, I think it should be considered what it is: nonsense on a piece of paper.
These contracts are so blatant that it doesn't even matter what the thresholds are or how they are determined. The way these "contracts" are set up to be agreed to by people who haven't read them is so flagrant, it's unmistakably contemptuous of the whole idea of an agreement.
This law refers to "A contractual term which has not been individually negotiated ... A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term ... if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract. .. Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him."
Which I think is a fair balance. If a company presents you a big long standard contract that their lawyers due up 5 years ago, then it's not really a contract between 2 equals.
defines the principle of unfair:
- If a contractual term has not been
individually negotiated *and*
- the term causes significant imbalance
in the parties rights and obligations,
*then*
- the term is contrary to the requirement of good faith.
It seems UK law is trying to define the principle of "unfair contract" in terms of "good faith," an existing and longstanding principle in contracts. Makes sense, but I don't think this is the best approach. (a) It just leaves an opening for creating consumer protection rules regarding what is and sin't fair. (b) There's still no reason not to keep adding stuff to your TOS or whatever.
I think it would be better if the law just didn't recognise contracts that are clearly out of place and don't really represent and agreement between parties.
I think this is the huge difference between US and English law. While they're both rooted in the same corpus ('common law'), they're exercised very differently.
Where US law can be seen to lean heavily towards the letter of the law, English law leans heavily towards Intent - both the spirit of the law, and the intent of the involved partied.
This is also where a great deal of friction against EU lawmakers is created. The EU leans towards "legislate everything", whereas we trust our judges to properly apply terms such as "unfair", "good faith", etc.
I think this is commonly missed when reading into each others' laws - there exists not only different laws and different legal systems, but also differing legal cultures. And that last one is much harder to read into.
The whole setup is also about transaction cost; basically a legal cartel to standardize routine consumer transactions, reducing cost (of evaluating and constantly re-evaluating complex contracts for routine business) and risk for all parties.
Businesses on the other hand have few protections, and bullshit contract terms seem fairly common, eg I saw a contract that required 6 months notice in writing or it would auto renew.
I think before you can determine if a contract is fair, you need to determine if a contract is even a contract. If a standard contract is "agreed" between some company (Apple, this hotel, etc) and all of their consumers and some unacceptably high number of those customers don't now the content of this contract, I think it should be considered what it is: nonsense on a piece of paper.
These contracts are so blatant that it doesn't even matter what the thresholds are or how they are determined. The way these "contracts" are set up to be agreed to by people who haven't read them is so flagrant, it's unmistakably contemptuous of the whole idea of an agreement.