Incorporating & Drafting Enforceable Terms in Consumer Contracts - An Update

Introduction

Incorporation of terms into a contract with a consumer is governed by case law which requires a trader to take reasonable steps to draw the terms and conditions to the consumer’s attention.

Traders need to be aware of what they are required to do or risk not being able to rely on their terms and conditions against the consumer.

Drafting terms for trader to consumer contracts is subject to a series of well-established, albeit complicated, rules described in the Consumer Rights Act 2015 (‘CRA’).

These rules set out a test for determining fairness as well as a series of exemptions and additional considerations.

Failure to comply, can lead to enforcement action by the Competition and Markets Authority (‘CMA’) and a declaration by the courts that a term is unenforceable.

Despite these dangers, many traders are still largely unaware of the more detailed provisions of the CRA and may well be in breach.

Since 6 April 2025, the Digital Markets, Competition and Consumers Act 2024 (‘the DMCC Act’) provides fining powers for serious breaches of the CRA, including in the area of unfair terms.

The maximum amount is up to 10% of total annual turnover or £300,000, whichever is higher.

Consequently, traders need to ensure that they are compliant with the rules in the CRA so as not to be fined under the DMCC Act.

This webinar summarises the key cases, the relevant provisions of the CRA, and the guidance of the CMA.

What You Will Learn

This webinar will cover the following:

• meaning of ‘reasonable steps’
• the ‘fairness’ test
• the core terms exemption
• the meaning of ‘prominent and transparent’
• CMA guidance on terms that are likely to be unfair
• examples of enforcement action taken by the CMA
• relevant case law
• enforcement powers contained in the DMCC Act

This pre-recorded webinar will be available to view from Wednesday 30th July 2025

Alternatively, you can gain access to this webinar and 1,700+ others via the MBL Webinar Subscription. Please email webinarsubscription@mblseminars.com for more details.