The Implementation of the Unfair Contract Terms Directive in the United Kingdom
Contemporary Issues in Law, 2006/2007
20 Pages Posted: 8 May 2009
Date Written: November 30, 2007
The purpose of this paper is to examine the implementation of the Unfair Contract Terms Directive (93/13/EEC) in the United Kingdom, taking particular account of judgments in cases involving the Unfair Terms in Consumer Contracts Regulations 1994 and 1999. Although the Directive has been effective in the UK for more than a decade, there have not been a great number of authoritative reported cases. There has been a decision by the House of Lords and a string of cases involving construction contracts. It is interesting to consider how English judges have handled the various concepts in the directive, including the concept of good faith which has been controversial among common lawyers. On the whole, it is encouraging to see that the courts have accepted the European character of the Regulations, and have largely taken into account not only relevant case-law of the European Court of Justice, but also the situation in other jurisdictions. This paper will begin by outlining the legal position in English law with regard to the control of unfair terms before the Directive was adopted. This involves considering both established common-law principles, and the statutory framework introduced by the Unfair Contract Terms Act 1977. This will then be followed by an analysis of the implementation of the Directive into English law, with a discussion of the case-law interpreting provisions of the implementing legislation. As a final issue in this paper, reference will be made to the proposed reforms to the law on unfair contract terms (undertaken by the Law Commission).
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