When reusing old contracts doesn't work

When reusing old contracts doesn't work

Can you sort out some terms and conditions for those new gadgets we're flogging on-line next month? We've got some similar T&Cs in the file over there. Just cobble something together with those—and any others you come across. We'll see how you get on...

Oh the joy of the word 'just'.

'Just cobble something together.'

It always sounds so innocuous. It implies that the task in hand should only take a few minutes—OK, perhaps an hour, tops—and anything longer means that you are impossibly inefficient at your job.

Cue some poor employee in a panic mashing together terms from a distribution agreement signed in 1977 together with provisions culled from a dusty set of T&Cs (last looked at during the Cuban Missile Crisis).

Not a recipe for successful T&Cs, particularly given the massive changes in drafting styles that have taken place since the turn of the century.

Nowadays, legalese is 'out' and plain English is 'in', certainly as far as consumer contracts are concerned.

Using standard 'boilerplate' provisions in contracts could result in them not being binding on consumers.

Understanding those terms which are allowed in consumer contracts (eg business to consumer agreements —B2C) as opposed to business to business agreements (B2B) is vital.

In essence, the room for manoeuvre in B2C agreements is considerably less than in B2B agreements. Why? Quite simply, B2C agreements must be in 'plain and intelligible' language under consumer laws such as the Unfair Terms in Consumer Contracts Regulations 1999 (the 'Unfair Terms Regulations'). If they are written in legalese they may well turn out to be not binding on consumers.

Given the preponderance of legal treacle and obfuscation in many business contracts, the risk is high that certain clauses in these sorts of contracts would fall foul of the Unfair Terms Regulations.

Moreover, unfair contract terms can also amount to unfair 'commercial practices' under entirely separate legislation, the Consumer Protection from Unfair Trading Regulations 2008 (the 'Unfair Trading Regulations')

So, if you need to draft standard provisions in a B2C agreement, the key, in particular, is to examine the Unfair Terms Regulations and the Unfair Trading Regulations carefully.

What sort of provisions have been allowed and what sort have been disapplied?

Here are examples of provisions which were entirely disapplied by the OFT (which is now closed—see below) in connection with B2C agreements. Make no mistake, by 'disapplied' I mean deleted in their entirely.

These are set out in the OFT's Unfair Terms Hub:

CUSTOMER REMEDIES—Microsoft's entire liab

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