Clarity and legibility in contractual language is widely recognised as desirable in its own right but [the Consumer Rights Act] goes beyond promoting that objective as an end in itself … the transparency provisions in the Act have to be understood as demanding ‘transparency’ in the full sense.
If your clients are members of the public (not acting in the course of a business or trade), then the Consumer Rights Act 2015 will affect your contracts. This Act demands transparency of terms in its widest sense and requires your contracts to:
- be written in plain intelligible language
- be legible
- make grammatical sense to the average consumer
- put your client in a position to evaluate the economic consequences of a contract term
- allow your client to make an informed choice whether to enter into your contract
- allow your client to have a proper understanding for all sensible and practical purposes
- set out your client’s obligations and rights in a clear and comprehensible way
- allow your client to see how obligations and rights relate to one another
- explain how a particular transaction or market normally operates
- explain the words used and unavoidably difficult terms
- avoid unfair terms ie those which cause a significant imbalance to the detriment of your client
- be structured to present terms in a manner which demonstrates good faith
- demonstrate fair and open dealing with your client
- include all terms set out fully
- contain no concealed pitfalls or traps
- give prominence to terms which might operate disadvantageously to your client
- not take advantage of your client’s circumstances (especially where vulnerable or with inherent biases).
You should also give your clients time to read your contract thoroughly – not with a pop-up box which is akin to making students sit inside a post box to read War and Peace.
Transparency and fairness require that consumers have a real chance to learn and understand, by the time the contract becomes binding, the nature and consequences of their obligations including those whose effect might otherwise come as an unpleasant surprise
What should you do?
If you want to avoid disputes, avoid surprises!
Ref: the Competitions and Markets Authority Guide (section 2.45 and 2.58 for quoted sections). Available from Gov website.
