The One Show today covers Terms and Conditions. Who reads them? Would you follow them if told?
There are pages and pages of small print. How many of us tick the box that says “Agree to terms and conditions”, only to fall foul later when we need to complain?
The Government thought so too and there was a call for evidence from the Department for Business, Innovation & Skills for consumers to provide feedback regarding their experiences. The open consultation ended on 25 April 2016 but there is still no response. I’ve requested details of when this will be forthcoming but as yet not heard anything.
So what can you do in the meantime if you feel that the terms and conditions you agreed to actually turned out to be unfair? Don’t worry, all is not lost!
Consumer Rights Act 2015 and unfair contracts
The Consumer Rights Act 2015 (CRA) creates a ‘fairness test’ to stop consumers being put at unfair disadvantage. A term is unfair if it tilts the rights and responsibilities between the consumer and the trader too much in favour of the trader. The test is applied by looking at what words are used and how they could be interpreted. It takes into consideration what is being sold, what the other terms of the contract say and all the circumstances at the time the term was agreed.
There is an exemption for the essential obligations of contracts – setting the price and describing the main subject matter – provided the wording used is clear and prominent. There is also an exemption for wording that has to be used by law. If you have been misled into making a decision that you would otherwise not have made then the company is in breach of this law.
The Consumer Protection from Unfair Trading Regulations 2008
For a practice to be unfair under these rules, they must harm, or be likely to harm, the economic interests of the average consumer. For example, when a shopper makes a purchasing decision he or she would not have made had he or she been given accurate information or not put under unfair pressure to do so.
The regulations prohibit trading practices that are unfair to consumers. There are four different types of practices covered:
A general ban – on conduct below a level which may be expected towards consumers (honest market practice/good faith).
Misleading practices – a practice misleads through the information it contains, or its deceptive presentation, and causes, or is likely to cause, the average consumer to take a different transactional decision specifically; general misleading information, creating confusion with competitors’ products or failing to honour commitments made in a code of conduct.
Aggressive sales techniques using harassment, coercion or undue influence– significantly impairs, or is likely to significantly impair, the average consumer’s freedom of choice or conduct in relation to the product through the use of harassment, coercion or undue influence – and thereby causes him to take a different transactional decision.
31 specific practices (that would be two long boring pages of post! It is pretty thorough though and all of them are listed in the book ). 🙂
How to use the law to get out of unfair contracts
Say for example, your mobile ‘phone is constantly losing signal and you can’t use it like any customer would want to, that is a breach of the Consumer Rights Act 2015 because it has not supplied you with services carried out with reasonable skill and care and you have every right to terminate the contract.
If however, the company tells you that in the terms and conditions of the contract that you signed, you can’t break a contract early under any circumstances, that’s a breach of the above laws, because they have not kept to their side of the bargain! In fact, the telecoms sector is downright awful for customer service so here is some more advice on them. All you need to know about complaining to telecom providers.
Another example. You were told that you could have a free cup of coffee and cake for giving your email address. You signed up. You had your coffee and cake they then tell you that in the terms and conditions you have to clean the floor. You argue that you didn’t know but they say “It’s in the terms and condition”. Tough. For them.
Under the CRA it could be an unfair contract, because cleaning the floor could be considered as worth more in payment than the coffee and cake (maybe it would depend how big the floor was?!) But under the CPUTRs it is a big fat breach. You would argue that you were misled into giving your email address.
Further help with complaining about unfair contracts
When you complain use the Top 20 Tips to complain effectively
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