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by rmc 4227 days ago
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.
1 comments
netcan 4227 days ago
Interesting. Thanks.

Some more context:

   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.
http://en.wikipedia.org/wiki/Unfair_Terms_in_Consumer_Contra...

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.

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soneil 4227 days ago
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.

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