If terms are not in plain and intelligible language they may be unfair even if they relate to the adequacy of the price or the main subject matter of the contract - the lack of clarity means that the consumer cannot make an informed choice, and that is unfair.

In an attempt to bring exclusion and limitation terms within the law, suppliers often include a term which says that the customer's statutory rights are not affected. That sort of wording will not save an unfair disclaimer – contradicting a disclaimer by using words which only a lawyer might understand will not make a limitation or exclusion term fair and binding.

If there is any doubt about the meaning of a term, the term will be interpreted in the way which is most beneficial to the consumer.

The requirement of good faith means suppliers must deal openly and fairly with consumers. Terms which might disadvantage the consumer should be given sufficient prominence and suppliers should not take advantage of the consumer’s weaker bargaining position or lack of experience.

How this works in practice – the Foxtons case

The Office of Fair Trading (OFT) (among others) can apply for an injunction to prevent businesses from relying on unfair terms in consumer contracts. Normally the OFT negotiates with suppliers to get them to agree to make their terms fairer (as it has done with Ryan Air who agreed to make the terms on their website about charges for checked in baggage more prominent), but Foxtons, the letting and estate agents, refused to change their terms and conditions to the extent required by the OFT. The OFT went to court. 

Foxtons’ terms included the right to be paid commission in the following circumstances:

• where tenants introduced by Foxtons renewed or extended their tenancies, even though Foxtons had not negotiated the renewal or extension;
• where the landlord sold the property to a tenant introduced by Foxtons, even though Foxtons had not negotiated or assisted in any way with the sale; and
• where the landlord had transferred the property to another landlord and the other landlord had renewed the tenancy, even though Foxtons had not negotiated the renewal.

The High Court held that these provisions were unfair even though they related to Foxtons’ remuneration. The court did not think that these provisions were part of the ‘core bargain’. They were therefore subject to the reasonableness test of the UTCCR.

The rationale for the court’s decision in the Foxtons case

• landlords were not usually sophisticated business people and would be unlikely to think about what would happen beyond finding a tenant for the property;
• the right to commission on renewals was unfair because it was a significant amount and because it became more adverse to the landlord as time passed;
• as time passed Foxtons did not provide services commensurate with the renewal commission and this created a significant imbalance between Foxtons and the landlord;
• the obligation to pay sales commission imposed  a substantial financial liability on the landlord for a transaction in which Foxtons played no part; it arose before the landlord received any sale money and it applied even if the contract for sale was not completed – this created an obvious imbalance;
•  the provisions were not sufficiently obvious – although they were included in the terms and conditions, this was not a fair way to bring the provisions to the notice of the landlords - they were not mentioned in the marketing materials, and a typical landlord would not expect to pay commission in later years unless it was spelled out or discussed;
• landlords would be thinking about letting the property, not selling it and would be surprised to find that they might have to pay commission on the sale of the property;
• the sale commission was hidden away in the small print – because it was so draconian it needed more focus to make it fair;
• if the landlord had a lawyer, he would be likely to object to these provisions; and
• some of the provisions were unfair because they were not drafted clearly – ambiguous words such as "associated" and "connected" were used.

 
And what is a consumer?

The UTCCR defines a consumer as a natural person (that is an individual) who is acting for purposes which are outside his trade, business or profession. In some cases landlords will be in the business of letting property, but in the Foxtons case the court treated the landlords as consumers because many of them would have only one or two properties to let and sometimes might just be letting rooms in a house.