Catching up with consumer realities: the need for legislation prohibiting unfair terms in consumer contracts

Howell, Nicola (2006) Catching up with consumer realities: the need for legislation prohibiting unfair terms in consumer contracts. Australian Business Law Review, 34(6), pp. 447-466.


In the policy debate about the need for legislation to prohibit the use of unfair terms in consumer contracts, substantive unfairness is often distinguished from procedural unfairness. Current consumer protection laws appear to offer the potential for relief on substantive unfairness grounds alone. However, a review of cases involving credit contracts shows this potential is rarely realised. This reluctance to provide relief for substantive injustice reflects a preoccupation with freedom and certainty of contract, the notions underpinning classical contract theories. As a class, consumers are vulnerable in the marketplace, and they do need protection from substantively unfair terms. A new framework for regulating consumer contracts is needed, one that relies less on classical contract theories and takes the reality of consumer contracting and consumer behavior as its starting point. Unfair contract terms legislation will be a step on the path towards this new framework.

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ID Code: 27226
Item Type: Journal Article
Refereed: Yes
Keywords: Consumer protection, Unfair terms, substantive unfairness, contract , consumer credit
ISSN: 0310-1053
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Commercial and Contract Law (180105)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Deposited On: 26 Aug 2011 02:28
Last Modified: 29 Feb 2012 13:58

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