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Report No. 199

Chapter VIII

Procedural Unfairness: Comparative Law

In this chapter we propose a closer focus on the 'procedural' unfairness provisions dealt with in various countries, though they have not been expressly segregated in any particular statute.

United Kingdom: procedural unfairness:

UCTA (1977): (procedural unfairness)

The (UK) Unfair Contract Terms Act, 1977 (UCTA) came forward with a test of 'reasonableness' in section 11. section 11(1) stated that the term must be 'fair and reasonable' having regard to the circumstances which were or ought reasonably to have been, known to or in contemplation of the parties when the contract was made. This relates obviously to 'procedural' unfairness.

UK 'guidelines' in Schedule 2 of the 1977 Act also contain provisions which deal partly with procedural and partly with substantive unfairness, though they are mixed up. Those that refer to 'procedural' unfairness are clauses (a), (b), (c). Clause (a) refers to the strength of the bargaining position, clause (b) as to whether the customer received inducement to agree to a term, and clause (c) to whether the customer knew or ought to have known of the existence of the term.

Unfair (Procedural and Substantive) Terms in Contract Back

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