Consumer Rights Act 2022

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SCHEDULE 5

Part 1

Contract terms presumed unfair

1. A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any contractual obligations, including the option of offsetting a debt owed to the trader against any claim which the consumer may have against the trader.

2. A term which has the object or effect of making an agreement binding on the consumer whereas the supply of a service by the trader is subject to a condition whose realisation depends on the trader’s will alone.

3. A term which has the object or effect of permitting the trader to retain sums paid by the consumer where the consumer decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the trader where the trader is the party cancelling the contract.

4. A term which has the object or effect of requiring that, where the consumer decides not to conclude or perform the contract, the consumer must pay the trader a disproportionately high sum in compensation for goods, digital content, a digital service which have not been supplied.

5. A term which has the object or effect of requiring any consumer who fails to fulfil his or her obligations under the contract to pay a disproportionately high sum in compensation.

6. A term which has the object or effect of authorising the trader to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the trader to retain the sums paid for goods, digital content, a digital service or a service not yet delivered or supplied by the trader, where it is the trader who dissolves the contract.

7. A term which has the object or effect of enabling the trader to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so.

8. A term which has the object or effect of permitting a trader, where the consumer has cancelled the contract, to retain a payment which, had the contract been performed, would have been paid to a third party in accordance with a contractual obligation or a mandatory statutory or regulatory provision.

9. A term which has the object or effect of automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express a desire not to extend the contract is unreasonably early.

10. A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer had no real opportunity of becoming acquainted before the conclusion of the contract.

11. A term which has the object or effect of enabling the trader to alter the terms of the contract unilaterally without a valid reason which is specified in the contract.

12. A term which has the object or effect of enabling the trader to alter unilaterally without a valid reason any characteristics of the goods, digital content, digital service or service to be delivered or supplied.

13. A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by the contract, where no price or method of determining the price has been agreed with the consumer before the consumer becomes bound.

14. A term which has the object or effect of providing for the price of goods, digital content, a digital service or a service to be determined at the time of delivery or supply, or permitting a trader to increase the price of goods, digital content, a digital service or a service without giving the consumer the right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded.

15. A term which has the object or effect of limiting the trader’s obligation to respect commitments undertaken by the trader’s agents or making the trader’s commitments subject to compliance with a particular formality.

16. A term which has the object or effect of obliging the consumer to fulfil all of his or her obligations where the trader does not perform the trader’s obligations.

17. A term which has the object or effect of giving the trader the possibility of transferring the trader’s rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the consumer’s agreement.

18. A term which has the object or effect of requiring a consumer to pay a fee in order to exercise a statutory right.

19. A term which has the object or effect of preventing, without a valid reason, the consumer from obtaining repairs or spare parts from another trader.

20. A term which has the object or effect of imposing disproportionate formal or other requirements where the consumer wishes to terminate the contract, whether for the purposes of switching to another trader or otherwise.

21. A term which has the object or effect of requiring from the consumer excessive advance payments or excessive guarantees of the performance of future obligations.

22. A term which has the object or effect of unduly restricting the evidence available to the consumer in respect of the performance of the contract.

23. A term which requires a consumer to restrict his or her rights as a data subject under the Data Protection Acts 1988 to 2018 or the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016²⁰ on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)).

24. A term specified in any regulations made under section 133 (4).

Part 2

Restrictions on application of Part 1

1. Term 7 (cancellation of contract without reasonable notice) does not include a term of a consumer contract by which a supplier of financial services reserves the right to terminate unilaterally a consumer contract of indeterminate duration without notice where there is a valid reason, provided that the supplier of financial services is required to inform the consumer and any other contracting party of the cancellation immediately.

2. Terms 11 (alteration of contract terms without valid reason) and 13 (determination of price after consumer bound by contract) do not include a term of a consumer contract whereby a supplier of financial services reserves the right to alter the rate of interest payable by or due to the consumer, or the amount of other charges for financial services payable by the consumer where there is a valid reason for doing so, provided that the supplier is required to inform the consumer and any other contracting party or parties of the alteration at the earliest opportunity and the consumer is free to dissolve the contract immediately.

3. Terms 11 (alteration of contract terms without valid reason) and 13 (determination of price after consumer bound by contract) do not include a term under which a trader reserves the right to alter unilaterally the conditions of a contract of indeterminate duration provided that the trader is required to inform the consumer of the alteration with reasonable notice and the consumer is free to dissolve the contract.

4. Terms 7 (cancellation of contract without reasonable notice), 11 (alteration of contract terms without valid reason), 13 (determination of price after consumer bound by contract) and 14 (determination of price upon delivery or increase in price) do not apply to—

(a) transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the trader does not control, or

(b) contracts for the purchase or sale of foreign currency, traveller’s cheques or international money orders denominated in foreign currency,

provided that the consumer is made aware of the possibility of such cancellation, alteration or determination of price in the contract before the consumer is bound by the contract.

5. Term 14 (determination of price upon delivery or increase in price) does not apply to a price-indexation clause, where otherwise lawful, provided that the method by which prices may vary is explicitly described.

²⁰ OJ No. L 119, 4.5.2016, p.1