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UCTA/UTCCR - Case Study Example

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Hence in Olley v Marlborough Court Hotel [1949] the claimant's fur coat was stolen from her hotel room. There was a notice on the back of the bedroom door excluding liability for the theft of precious items which were not left with the manageress. The Court of Appeal decided that as the claimant had signed the contract before leaving her coat in her hotel room the exclusion was not part of the contract.
Consumer contracts are governed by two pieces of overlapping legislation, the Unfair Contract Terms Act (1979) and the Unfair Terms in Consumer Contracts Regulations (1999), which we shall refer to as the UCTA 1979 and UTCCR 1999 respectively. It should be noted from the outset that a claimant may only seek redress from a disputed contractual term under the UTCRR 1999 if the disputed term falls within the ambit of the Sale of Goods legislation. The UCTA 1979 is broader in scope, but does not cover all types of contract and is limited to exclusion and limitation clauses.
Looking at the decided cases in this area it would appear that the court first determines whether the disputed clause(s) is 'unfair' within the meaning of the legislation, and then looks at whether the plaintiff meets the requirement to be dealing with a business as a consumer. The rationale seems to be the way in which the remedies work. An unfair term can be void ab initio regardless of the status of the parties, but if it is within a consumer contract this may impact on what remedy the court orders. Strictly it could simply be a replacement item rather than just rejection of the term from the contract or damages.
Since Melinda is using the dishwasher for both her business and her family we must first determine whether she is covered by the legislation. This is an important question as neither the UCTA 1979 nor the UTCCR 1999 apply to business to business transactions - the claimant must be a consumer for the purposes of the legislation.
There will be no redress under the UTCCR 1999 if Melinda is not acting in the capacity of a consumer. The UTCCR 1999 defines a consumer as any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession''. Under s12 UCTA 1979 a party to a contract 'deals as consumer' in relation to another party if he does not make contracts of that type in the course of a business, and the other party does make contracts of that type in the course of a business. On the facts before us prima facie Melinda has purchased the dishwasher to be used partially in her business. The question is whether this would prevent her relying on the UTCCR 1999 and/or the UCTA 1979
In Peter Symmons & Co v Cook [1981] Peter Symmons & Co were a firm of surveyors. The firm bought a used Rolls Royce from Cook, a car dealer, for 9,000. Before the car had done 2,000 miles it became apparent that it would be cheaper to replace it than to repair it. Peter Symmons & Co claimed damages from Cook on the grounds that he was in breach of both express and implied terms of the contract namely:
Cook had warranted that the car was in excellent condition (an express term);
As the car was not of merchantable quality Cook was in breach of s.14(2) Sale of Goods Act 1893(implied); and
As the car was not reasonably fit for the purpose Cook was of s.14 (3) Sale of Goods Act 1893 (implied).
Cook denied that any express warranty had been ...Show more
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An exclusion clause seeks to exclude from a contract some term (such as one imposing a duty of care) that would otherwise be implied; a limitation clause seeks to limit liability for any breach of such a term.
The general rule is that the parties are free to determine the terms of their own contract…
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