Consumer Rights Act 2015, section 61

Contracts and notices covered by this Part

PART 2 Unfair terms

(1)This Part applies to a contract between a trader and a consumer.

(2)This does not include a contract of employment or apprenticeship.

(3) A contract to which this Part applies is referred to in this Part as a “consumer contract”.

(4)This Part applies to a notice to the extent that it—

(a)relates to rights or obligations as between a trader and a consumer, or

(b)purports to exclude or restrict a trader's liability to a consumer.

(5)This does not include a notice relating to rights, obligations or liabilities as between an employer and an employee.

(6)It does not matter for the purposes of subsection (4) whether the notice is expressed to apply to a consumer, as long as it is reasonable to assume it is intended to be seen or heard by a consumer.

(7) A notice to which this Part applies is referred to in this Part as a “consumer notice”.

(8) In this section “notice” includes an announcement, whether or not in writing, and any other communication or purported communication.

Definitions used in section 61 1

trader

(8) In this paragraph “trader” has the same meaning as in Part 1 of this Act .

Defined in Sch.5 para.27(8) · see it in the full Act

Cases considering section 61 7

REGINA v Peter HUNTER

[2021] EWCA Crim 1785 · 26 November 2021Defines

A consumer contract is one between a trader and a consumer. The court applied that definition to hold that purchases by the appellants' businesses from ticket vendors were not consumer contracts (see paras [143]; [153]-[156]).

Eternity Sky Investments Ltd v Xiaomin Zhang

[2023] EWHC 1964 (Comm) · 28 July 2023Defines

Defines the contracts to which Part 2 applies as contracts between a trader and a consumer. Mrs Zhang’s status was therefore decisive to the statutory analysis. (see paras [60]-[62], [86])

Michael Glaser KC & Anor v Katharine Jane Atay

[2024] EWCA Civ 1111 · 3 October 2024Defines

The Court treated the contracts as within Part 2 because counsel were traders and the client was a consumer; the contracts were therefore consumer contracts subject to the unfair-terms regime (see para [24]).

What each judgment says about section 61 is in the case-law panel in the full Act.

Explanatory note

295.This section sets out the scope of Part 2 of the Act:

  • It covers contracts between a trader and a consumer. For ease of reference, trader to consumer contracts are called ‘consumer contracts’ in this Part.

  • Whilst Part 2 concerns contracts, it also includes consumer notices – both contractual and non-contractual consumer notices. A consumer notice includes an announcement or other communication which it is reasonable to assume is intended to be read by a consumer. Non-contractual consumer notices (e.g. a sign in a car park) do not include an exchange of something in return for something else of value (known as “consideration”) as a contract does.

  • This Part does not cover employment contacts, as they are regulated by specific employment legislation.

296.This Part covers terms in End User Licence Agreements to the extent that they are either consumer contracts or consumer notices. Research suggests that some End User Licence Agreements, for example those known as “click-wrap licences”, which the consumer must explicitly agree to before they are able to download digital content, may have contractual status. Consumer contracts are subject to the provisions of Part 2 and if they contain terms listed in Schedule 2, those terms are assessable for fairness. Other types of End User Licence Agreements, such as those known as “shrink-wrap” or “browse-wrap” licences, may not have contractual status but may alternatively be consumer notices, and therefore also be subject to the provisions in Part 2. End User Licence Agreements may also set out for the consumer legal provisions in other pieces of legislation, such as those in relation to intellectual property. Section 73 makes clear that the Act’s unfair terms provisions do not override legal requirements in other legislation, therefore if a term reflects other law, then it will be exempt from the provisions in Part 2.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I75S. 61 in force at 1.10.2015 by S.I. 2015/1630, art. 3(c) (with art. 6(1))