In deciding whether a clause is unfair, a tribunal will consider whether your contract partner had a choice to accept or avoid a particular term.

Many years ago, a highly influential judge, Lord Denning, said:

None of you nowadays will remember the trouble we had – when I was called to the Bar – with exemption clauses. They were printed in small print on the back of tickets and order forms and invoices. They were contained in catalogues or timetables. They were held to be binding on any person who took them without objection. No one ever did object. He never read them or knew what was in them. No matter how unreasonable they were, he was bound. All this was done in the name of ‘freedom of contract.’ But the freedom was all on the side of the big concern which had the use of the printing press. No freedom for the little man who took the ticket or order form or invoice. The big concern said, ‘Take it or leave it.’ The little man had no option but to take it…

It was a bleak winter for our law of contract…

Everything is negotiable

Contracts are there to help you do business. You have freedom to contract with whomever you like on whatever terms you like. And if you don’t like, then you can walk away.

Do not accept unfair terms just because you are told are ‘non-negotiable.’ It is often the terms you should have objected to which come back to bite you!

What should you do?

Pay attention to the terms and conditions.

Read them, understand them and don’t meekly accept them.

Create a contract which safeguards your business by negotiating a deal which suits you.

Case: George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1982] EWCA Civ 5

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