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Consumer law takes new approach to plain language

[18 Mar 2016] The law requiring clarity in consumer contracts has been updated with the introduction of the Consumer Rights Act 2015. The new Act applies a test of fairness to terms used by traders in transactions with consumers. A separate and distinct requirement is that a written term of a consumer contract or consumer notice must be ‘transparent’.

The main aspect of transparency is that the term should be plain and intelligible to the average person, whom the Act defines as ‘a consumer who is reasonably well informed, observant and circumspect’.

The official guidance to the Act says at paragraph 2.56: ‘What may appear to be relatively straightforward technicalities can have onerous implications of which consumers are likely to be unaware.’ Among its examples of technicalities are clauses that use language like ‘indemnity’ and ‘statutory rights’. Download the guidance here.

If a term is not transparent (ie, not plain and intelligible) or prominent and creates a ‘significant imbalance, contrary to the requirements of good faith, to the detriment of consumers’, then it is unfair, according to paragraph 1.58 of the guidance. This means it is not legally binding on consumers (paragraph 1.31), who can challenge it in the courts.

If a term fails only the transparency test, a trader may still enforce it against an individual consumer (paragraph 2.6). But if the term is ambiguous, it must be interpreted in the way most favourable to the consumer. The regulator­ – the Competition and Markets Authority (CMA) – may take enforcement action against traders who use terms that fail on transparency alone. [cont]

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