Q&As

Is it unfair for a company based in England selling goods or services to a consumer in Scotland to make the parties' contract subject to the Law of England and Wales?

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Published on LexisPSL on 17/10/2016

The following Commercial Q&A provides comprehensive and up to date legal information covering:

  • Is it unfair for a company based in England selling goods or services to a consumer in Scotland to make the parties' contract subject to the Law of England and Wales?

This answer focuses only on the issue of governing law (not jurisdiction) in respect of contractual claims and has been prepared from the perspective of a contract made on the date of this Q&A on the basis that:

  1. the consumer is a natural person who satisfies the relevant definitions of ‘consumer’ in the various legislation referred to below and took all the steps necessary on his part for the conclusion of the contract in Scotland and is deemed to have his habitual residence (as defined by applicable legislation) there

  2. the English company is acting in the exercise of its trade or profession and pursues its commercial or professional activities to which the contract relates in Scotland or by any means directs such activities to Scotland or to several countries including Scotland

  3. the position in respect of non-contractual claims (eg tort, delict and negligence) has not been considered

Unfair terms

The Consumer Rights Act 2015 (CRA 2015) replaced the Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083 (UTCCR 1999). As explained in Practice Note: Consumer Rights Act 2015—unfair terms, a term or notice is unfair under the CRA 2015 (under a test which is similar to that under the preceding UTCCR 1999) if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the

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