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Report No. 199

13. Guidelines for purposes of determining general substantive unfairness under sections 9 to 12.-

For the purposes of sections 9 to 12, the court may take into account the following circumstances, namely:-

(i) whether or not the contract or a term thereof imposed conditions which are,-

(i) unreasonably difficult to comply with, or

(ii) are not reasonably necessary for the protection of the legitimate interests of any party to the contract;

(j) whether the contract is oral or wholly or partly in writing;

(k) whether the contract is in standard form;

(l) whether the contract or a term thereof is contrary to reasonable standards of fair dealing or commonly accepted standards of dealing;

(m) whether the contract, agreement or a term thereof has resulted in a substantially unequal exchange of monetary values or in a substantive imbalance between the parties;

(n) whether the benefits to be received by the disadvantaged party are manifestly disproportionate or inappropriate to his or her circumstances;

(o) whether the disadvantaged party was in a fiduciary relationship with the other party; or

(p) whether the contract or a term thereof

(i) requires manifestly excessive security for the performance of contractual obligations; or

(ii) imposes penalties which are disproportionate to the consequences of a breach of contract; or

(iii) denies or penalises the early repayment of debts; or

(iv) entitles a party to terminate the contract unilaterally without good reason or without paying reasonable compensation; or

(v) entitles a party to modify the terms of a contract unilaterally.

Unfair (Procedural and Substantive) Terms in Contract Back

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