PART 2Unfair terms
What are the general rules about fairness of contract terms and notices?
62Requirement for contract terms and notices to be fair
1
An unfair term of a consumer contract is not binding on the consumer.
2
An unfair consumer notice is not binding on the consumer.
3
This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.
4
A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
5
Whether a term is fair is to be determined—
a
taking into account the nature of the subject matter of the contract, and
b
by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.
6
A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.
7
Whether a notice is fair is to be determined—
a
taking into account the nature of the subject matter of the notice, and
b
by reference to all the circumstances existing when the rights or obligations to which it relates arose and to the terms of any contract on which it depends.
8
This section does not affect the operation of—
a
section 31 (exclusion of liability: goods contracts),
b
section 47 (exclusion of liability: digital content contracts),
c
section 57 (exclusion of liability: services contracts), or
d
section 65 (exclusion of negligence liability).