The Practical Lawyer

The Consumer Rights Act 2015 creates a powerful new set of rights for ‘consumers’. But, it is important to remember that in non-consumer transactions the existing statutory regime applies. Accordingly, businesses that deal with both consumers and non-consumers need to ensure that their contractual terms and conditions cover both sets of customers.

As we noted in the December 2015/January 2016 issue (p19) the Supreme Court has given an important decision on penalty clauses in contracts:

Many commercial agency contracts have termination provisions which say that the agent will get the lesser of an indemnity payment or compensation. But, will such a provision be valid?

Private copying is (once again) unlawful.

 A pan-EU electronic platform will come into operation on 15 February 2016. It provides an online dispute resolution service for online shops and their ‘consumer’ customers.

 A bill of sale can be taken over any item. By far the most common these days is the logbook loan (about 50,000 are taken each year).

This flowchart gives a simple guide to how the new penalty rules should apply in complex commercial damages cases. Bear in mind that property transactions will often be more straightforward. 

   If ‘time is of the essence’ then even a minor deviation from the agreed timescales will amount to a fundamental breach of contract (allowing the innocent party to terminate the contract). But, the general position is that time is not generally considered to be of the essence unless (i) it is expressly agreed in the contract, or (ii) it is implied by the contract, or (iii) time is subsequently made ‘of the essence’ by the innocent party sending a notice requiring the defaulter to complete performance within a specified (‘reasonable’) time.

One of the major changes under the Public Contracts Regs 2015 is the obligation to offer unrestricted and full direct access to the ‘procurement documents’ from the time a notice is published in the OJEU commencing the procurement.