Requirement for transparency
PART 2 Unfair terms
(1)A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2)A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
(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(3) A contract to which this Part applies is referred to in this Part as a “consumer contract”.
Defined in s.61(3) · see it in the full Act“consumer contract” has the meaning given by section 61(3);
Defined in s.76(1) · see it in the full Act(7) A notice to which this Part applies is referred to in this Part as a “consumer notice”.
Defined in s.61(7) · see it in the full Act“consumer notice” has the meaning given by section 61(7);
Defined in s.76(1) · see it in the full Act“transparent” is to be construed in accordance with sections 64(3) and 68(2).
Defined in s.76(1) · see it in the full ActConfirms the separate statutory requirement that written consumer terms be transparent. A breach would not necessarily make a term unfair or unenforceable, although broader lack of openness may inform good faith (see paras [102.2]-[102.6]). Applies the plain-language and legibility requirement. Clause 16 was held sufficiently legible, signposted and intelligible (see paras [102.2], [102.4]-[102.6]).
Applies the statutory requirement that written consumer terms be transparent. The exclusion clauses did not satisfy that requirement. (see paras [21]; [174]-[178])
The court referred to transparency as supporting the consumer’s expectation that the screen would show the determinative result. The lack of a clear caveat reinforced the conclusion that B1 was unusual and onerous. (see para [113])
What each judgment says about section 68 is in the case-law panel in the full Act.
328.Whilst previous sections explain that a term in a consumer contract or a consumer notice must be fair, and how that is determined, this section states that, in addition, written terms and written notices must be transparent (defined as legible and in plain and intelligible language). The trader has an obligation to ensure that such terms are transparent.
329.This requirement, like others in this Act, may be enforced by public bodies under the relevant provisions, including under Part 8 of the EA, if the conditions in that Act are met (for example, if the term harms the collective interest of consumers). It may also be enforced under Schedule 3.
330.This section reflects regulation 7(1) of the UTCCRs, which implements Article 5 of the UTCCD.