United Kingdom (and EU regulation)

FCA outlines key messages for firms on unfair contract terms

The FCA has published an updated version of its unfair contract terms webpage.

The web page contains certain key messages that firms are encouraged to focus on. These include:

take into account consumers’ legitimate interests in relation to contracts over which they have had no influence but to which they will nonetheless be bound;
fairness is not contrary to the prudent management of the business but part of it;
relying on narrow technical arguments to justify a contract term that, in fact, may be unfair, risks future challenge;
the fact that a term does not resemble any of the terms listed in Schedule 2 of the Consumer Rights Act 20015 (CRA) or Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999 may not, in itself remove the risk of unfairness. Firms need to assess whether a term is fair under the CRA/UTCCRs as a whole and in the context of the particular product and service;
take into account developments in legislation and relevant case law concerning Council Directive 93/13/ECC on unfair terms in consumer contracts (including relevant UK and European case law); and
the Competition Markets Authority published guidance on the unfair terms provisions of the CRA on 31 July 2015 and firms should read this.