40 Quality, fitness and description of content supplied subject to modifications
(1) Where under a contract a trader supplies digital content to a consumer subject to the right of the trader or a third party to modify the digital content, the following provisions apply in relation to the digital content as modified as they apply in relation to the digital content as supplied under the contract—
(a) section 34 (quality);
(b) section 35 (fitness for a particular purpose);
(c) section 36 (description).
(2) Subsection (1)(c) does not prevent the trader from improving the features of, or adding new features to, the digital content, as long as—
(a) the digital content continues to match the description of it given by the trader to the consumer, and
(b) the digital content continues to conform to the information provided by the trader as mentioned in subsection (3) of section 36, subject to any change to that information that has been agreed in accordance with subsection (4) of that section.
(3) A claim on the grounds that digital content does not conform to a term described in any of the sections listed in subsection (1) as applied by that subsection is to be treated as arising at the time when the digital content was supplied under the contract and not the time when it is modified.
(1) Every contract to supply digital content is to be treated as including a term—
(a) in relation to any digital content which is supplied under the contract and which the consumer has paid for, that the trader has the right to supply that content to the consumer;
(b) in relation to any digital content which the trader agrees to supply under the contract and which the consumer has paid for, that the trader will have the right to supply it to the consumer at the time when it is to be supplied.
(2) See section 42 for a consumer's rights if the trader is in breach of a term that this section requires to be treated as included in a contract.
42 Consumer's rights to enforce terms about digital content
(1) In this section and section 43 references to digital content conforming to a contract are references to the digital content conforming to the terms described in sections 34, 35 and 36.
(2) If the digital content does not conform to the contract, the consumer's rights (and the provisions about them and when they are available) are—
(a) the right to repair or replacement (see section 43);
(b) the right to a price reduction (see section 44).
(3) Section 16 also applies if an item including the digital content is supplied.
(4) If the trader is in breach of a term that section 37 requires to be treated as included in the contract, the consumer has the right to recover from the trader the amount of any costs incurred by the consumer as a result of the breach, up to the amount of the price paid for the digital content or for any facility within section 33(3) used by the consumer.
(5) If the trader is in breach of the term that section 41(1) (right to supply the content) requires to be treated as included in the contract, the consumer has the right to a refund (see section 45 for provisions about that right and when it is available).
(6) This Chapter does not prevent the consumer seeking other remedies for a breach of a term to which any of subsections (2), (4) or (5) applies, instead of or in addition to a remedy referred to there (but not so as to recover twice for the same loss).
(7) Those other remedies include any of the following that is open to the consumer in the circumstances—
(a) claiming damages;
(b) seeking to recover money paid where the consideration for payment of the money has failed;
(c) seeking specific performance;
(d) seeking an order for specific implement;
(e) relying on the breach against a claim by the trader for the price.
(8) It is not open to the consumer to treat the contract as at an end for breach of a term to which any of subsections (2), (4) or (5) applies.
(9) For the purposes of subsection (2), digital content which does not conform to the contract at any time within the period of six months beginning with the day on which it was supplied must be taken not to have conformed to the contract when it was supplied.
(10) Subsection (9) does not apply if—
(a) it is established that the digital content did conform to the contract when it was supplied, or
(b) its application is incompatible with the nature of the digital content or with how it fails to conform to the contract.
(1) This section applies if the consumer has the right to repair or replacement.
(2) If the consumer requires the trader to repair or replace the digital content, the trader must—
(a) do so within a reasonable time and without significant inconvenience to the consumer; and
(b) bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage).
(3) The consumer cannot require the trader to repair or replace the digital content if that remedy (the repair or the replacement)—
(a) is impossible, or
(b) is disproportionate compared to the other of those remedies.
(4) Either of those remedies is disproportionate compared to the other if it imposes costs on the trader which, compared to those imposed by the other, are unreasonable, taking into account—
(a) the value which the digital content would have if it conformed to the contract,
(b) the significance of the lack of conformity, and
(c) whether the other remedy could be effected without significant inconvenience to the consumer.
(5) Any question as to what is a reasonable time or significant inconvenience is to be determined taking account of—
(a) the nature of the digital content, and
(b) the purpose for which the digital content was obtained or accessed.
(6) A consumer who requires or agrees to the repair of digital content cannot require the trader to replace it without giving the trader a reasonable time to repair it (unless giving the trader that time would cause significant inconvenience to the consumer).
(7) A consumer who requires or agrees to the replacement of digital content cannot require the trader to repair it without giving the trader a reasonable time to replace it (unless giving the trader that time would cause significant inconvenience to the consumer).
(8) In this Chapter, “repair” in relation to digital content that does not conform to a contract, means making it conform.
(1) The right to a price reduction is the right to require the trader to reduce the price to the consumer by an appropriate amount (including the right to receive a refund for anything already paid above the reduced amount).
(2) The amount of the reduction may, where appropriate, be the full amount of the price.
(3) A consumer who has that right may only exercise it in one of these situations—
(a) because of section 43(3)(a) the consumer can require neither repair nor replacement of the digital content, or
(b) the consumer has required the trader to repair or replace the digital content, but the trader is in breach of the requirement of section 43(2)(a) to do so within a reasonable time and without significant inconvenience to the consumer.
(4) A refund under this section must be given without undue delay, and in any event within 14 days beginning with the day on which the trader agrees that the consumer is entitled to a refund.
(5) The trader must give the refund using the same means of payment as the consumer used to pay for the digital content, unless the consumer expressly agrees otherwise.
(6) The trader must not impose any fee on the consumer in respect of the refund.
(1) The right to a refund gives the consumer the right to receive a refund from the trader of all money paid by the consumer for the digital content (subject to subsection (2)).
(2) If the breach giving the consumer the right to a refund affects only some of the digital content supplied under the contract, the right to a refund does not extend to any part of the price attributable to digital content that is not affected by the breach.
(3) A refund must be given without undue delay, and in any event within 14 days beginning with the day on which the trader agrees that the consumer is entitled to a refund.
(4) The trader must give the refund using the same means of payment as the consumer used to pay for the digital content, unless the consumer expressly agrees otherwise.
(5) The trader must not impose any fee on the consumer in respect of the refund.
46 Remedy for damage to device or to other digital content
(1) This section applies if—
(a) a trader supplies digital content to a consumer under a contract,
(b) the digital content causes damage to a device or to other digital content,
(c) the device or digital content that is damaged belongs to the consumer, and
(d) the damage is of a kind that would not have occurred if the trader had exercised reasonable care and skill.
(2) If the consumer requires the trader to provide a remedy under this section, the trader must either—
(a) repair the damage in accordance with subsection (3), or
(b) compensate the consumer for the damage with an appropriate payment.
(3) To repair the damage in accordance with this subsection, the trader must—
(a) repair the damage within a reasonable time and without significant inconvenience to the consumer, and
(b) bear any necessary costs incurred in repairing the damage (including in particular the cost of any labour, materials or postage).
(4) Any question as to what is a reasonable time or significant inconvenience is to be determined taking account of—
(a) the nature of the device or digital content that is damaged, and
(b) the purpose for which it is used by the consumer.
(5) A compensation payment under this section must be made without undue delay, and in any event within 14 days beginning with the day on which the trader agrees that the consumer is entitled to the payment.
(6) The trader must not impose any fee on the consumer in respect of the payment.
(7) A consumer with a right to a remedy under this section may bring a claim in civil proceedings to enforce that right.
(8) The Limitation Act 1980 and the Limitation (Northern Ireland) Order 1989 (SI 1989/1339 (NI 11)) apply to a claim under this section as if it were an action founded on simple contract.
(9) The Prescription and Limitation (Scotland) Act 1973 applies to a right to a remedy under this section as if it were an obligation to which section 6 of that Act applies.
47 Liability that cannot be excluded or restricted
(1) A term of a contract to supply digital content is not binding on the consumer to the extent that it would exclude or restrict the trader's liability arising under any of these provisions—
(a) section 34 (digital content to be of satisfactory quality),
(b) section 35 (digital content to be fit for particular purpose),
(c) section 36 (digital content to be as described),
(d) section 37 (other pre-contract information included in contract), or
(e) section 41 (trader's right to supply digital content).
(2) That also means that a term of a contract to supply digital content is not binding on the consumer to the extent that it would—
(a) exclude or restrict a right or remedy in respect of a liability under a provision listed in subsection (1),
(b) make such a right or remedy or its enforcement subject to a restrictive or onerous condition,
(c) allow a trader to put a person at a disadvantage as a result of pursuing such a right or remedy, or
(d) exclude or restrict rules of evidence or procedure.
(3) The reference in subsection (1) to excluding or restricting a liability also includes preventing an obligation or duty arising or limiting its extent.
(4) An agreement in writing to submit present or future differences to arbitration is not to be regarded as excluding or restricting any liability for the purposes of this section.
(5) See Schedule 3 for provision about the enforcement of this section.
(6) For provision limiting the ability of a trader under a contract within section 46 to exclude or restrict the trader's liability under that section, see section 62.
(1) This Chapter applies to a contract for a trader to supply a service to a consumer.
(2) That does not include a contract of employment or apprenticeship.
(3) In relation to Scotland, this Chapter does not apply to a gratuitous contract.
(3A) This Chapter does not apply to anything that is governed by Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004.
(4) A contract to which this Chapter applies is referred to in this Part as a “contract to supply a service”.
(5) The Secretary of State may by order made by statutory instrument provide that a provision of this Chapter does not apply in relation to a service of a description specified in the order.
(6) The power in subsection (5) includes power to provide that a provision of this Chapter does not apply in relation to a service of a description specified in the order in the circumstances so specified.
(7) An order under subsection (5) may contain transitional or transitory provision or savings.
(8) No order may be made under subsection (5) unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.
49 Service to be performed with reasonable care and skill
(1) Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill.
(2) See section 54 for a consumer's rights if the trader is in breach of a term that this section requires to be treated as included in a contract.
50 Information about the trader or service to be binding
(1) Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service, if—
(a) it is taken into account by the consumer when deciding to enter into the contract, or
(b) it is taken into account by the consumer when making any decision about the service after entering into the contract.
(2) Anything taken into account by the consumer as mentioned in subsection (1)(a) or (b) is subject to—
(a) anything that qualified it and was said or written to the consumer by the trader on the same occasion, and
(b) any change to it that has been expressly agreed between the consumer and the trader (before entering into the contract or later).
(3) Without prejudice to subsection (1), any information provided by the trader in accordance with regulation 9, 10 or 13 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) is to be treated as included as a term of the contract.
(4) A change to any of the information mentioned in subsection (3), made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.
(5) See section 54 for a consumer's rights if the trader is in breach of a term that this section requires to be treated as included in a contract.
(1) This section applies to a contract to supply a service if—
(a) the consumer has not paid a price or other consideration for the service,
(b) the contract does not expressly fix a price or other consideration, and does not say how it is to be fixed, and
(c) anything that is to be treated under section 50 as included in the contract does not fix a price or other consideration either.
(2) In that case the contract is to be treated as including a term that the consumer must pay a reasonable price for the service, and no more.
(3) What is a reasonable price is a question of fact.
52 Service to be performed within a reasonable time
(1) This section applies to a contract to supply a service, if—
(a) the contract does not expressly fix the time for the service to be performed, and does not say how it is to be fixed, and
(b) information that is to be treated under section 50 as included in the contract does not fix the time either.
(2) In that case the contract is to be treated as including a term that the trader must perform the service within a reasonable time.
(3) What is a reasonable time is a question of fact.
(4) See section 54 for a consumer's rights if the trader is in breach of a term that this section requires to be treated as included in a contract.
(1) Nothing in this Chapter affects any enactment or rule of law that imposes a stricter duty on the trader.
(2) This Chapter is subject to any other enactment which defines or restricts the rights, duties or liabilities arising in connection with a service of any description.
54 Consumer's rights to enforce terms about services
(1) The consumer's rights under this section and sections 55 and 56 do not affect any rights that the contract provides for, if those are not inconsistent.
(2) In this section and section 55 a reference to a service conforming to a contract is a reference to—
(a) the service being performed in accordance with section 49, or
(b) the service conforming to a term that section 50 requires to be treated as included in the contract and that relates to the performance of the service.
(3) If the service does not conform to the contract, the consumer's rights (and the provisions about them and when they are available) are—
(a) the right to require repeat performance (see section 55);
(b) the right to a price reduction (see section 56).
(4) If the trader is in breach of a term that section 50 requires to be treated as included in the contract but that does not relate to the service, the consumer has the right to a price reduction (see section 56 for provisions about that right and when it is available).
(5) If the trader is in breach of what the contract requires under section 52 (performance within a reasonable time), the consumer has the right to a price reduction (see section 56 for provisions about that right and when it is available).
(6) This section and sections 55 and 56 do not prevent the consumer seeking other remedies for a breach of a term to which any of subsections (3) to (5) applies, instead of or in addition to a remedy referred to there (but not so as to recover twice for the same loss).
(7) Those other remedies include any of the following that is open to the consumer in the circumstances—
(a) claiming damages;
(b) seeking to recover money paid where the consideration for payment of the money has failed;
(c) seeking specific performance;
(d) seeking an order for specific implement;
(e) relying on the breach against a claim by the trader under the contract;
(f) exercising a right to treat the contract as at an end.
(1) The right to require repeat performance is a right to require the trader to perform the service again, to the extent necessary to complete its performance in conformity with the contract.
(2) If the consumer requires such repeat performance, the trader—
(a) must provide it within a reasonable time and without significant inconvenience to the consumer; and
(b) must bear any necessary costs incurred in doing so (including in particular the cost of any labour or materials).
(3) The consumer cannot require repeat performance if completing performance of the service in conformity with the contract is impossible.
(4) Any question as to what is a reasonable time or significant inconvenience is to be determined taking account of—
(a) the nature of the service, and
(b) the purpose for which the service was to be performed.
(1) The right to a price reduction is the right to require the trader to reduce the price to the consumer by an appropriate amount (including the right to receive a refund for anything already paid above the reduced amount).
(2) The amount of the reduction may, where appropriate, be the full amount of the price.
(3) A consumer who has that right and the right to require repeat performance is only entitled to a price reduction in one of these situations—
(a) because of section 55(3) the consumer cannot require repeat performance; or
(b) the consumer has required repeat performance, but the trader is in breach of the requirement of section 55(2)(a) to do it within a reasonable time and without significant inconvenience to the consumer.
(4) A refund under this section must be given without undue delay, and in any event within 14 days beginning with the day on which the trader agrees that the consumer is entitled to a refund.
(5) The trader must give the refund using the same means of payment as the consumer used to pay for the service, unless the consumer expressly agrees otherwise.
(6) The trader must not impose any fee on the consumer in respect of the refund.
57 Liability that cannot be excluded or restricted
(1) A term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader's liability arising under section 49 (service to be performed with reasonable care and skill).
(2) Subject to section 50(2), a term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader's liability arising under section 50 (information about trader or service to be binding).
(3) A term of a contract to supply services is not binding on the consumer to the extent that it would restrict the trader's liability arising under any of sections 49 and 50 and, where they apply, sections 51 and 52 (reasonable price and reasonable time), if it would prevent the consumer in an appropriate case from recovering the price paid or the value of any other consideration. (If it would not prevent the consumer from doing so, Part 2 (unfair terms) may apply.)
(4) That also means that a term of a contract to supply services is not binding on the consumer to the extent that it would —
(a) exclude or restrict a right or remedy in respect of a liability under any of sections 49 to 52,
(b) make such a right or remedy or its enforcement subject to a restrictive or onerous condition,
(c) allow a trader to put a person at a disadvantage as a result of pursuing such a right or remedy, or
(d) exclude or restrict rules of evidence or procedure.
(5) The references in subsections (1) to (3) to excluding or restricting a liability also include preventing an obligation or duty arising or limiting its extent.
(6) An agreement in writing to submit present or future differences to arbitration is not to be regarded as excluding or restricting any liability for the purposes of this section.
(7) See Schedule 3 for provision about the enforcement of this section.
(1) In any proceedings in which a remedy is sought by virtue of section 19(3) or (4), 42(2) or 54(3), the court, in addition to any other power it has, may act under this section.
(2) On the application of the consumer the court may make an order requiring specific performance or, in Scotland, specific implement by the trader of any obligation imposed on the trader by virtue of section 23, 43 or 55.
(3) Subsection (4) applies if—
(a) the consumer claims to exercise a right under the relevant remedies provisions, but
(b) the court decides that those provisions have the effect that exercise of another right is appropriate.
(4) The court may proceed as if the consumer had exercised that other right.
(5) If the consumer has claimed to exercise the final right to reject, the court may order that any reimbursement to the consumer is reduced by a deduction for use, to take account of the use the consumer has had of the goods in the period since they were delivered.
(6) Any deduction for use is limited as set out in section 24(9) and (10).
(7) The court may make an order under this section unconditionally or on such terms and conditions as to damages, payment of the price and otherwise as it thinks just.
(8) The “relevant remedies provisions” are—
(a) where Chapter 2 applies, sections 23 and 24;
(b) where Chapter 3 applies, sections 43 and 44;
(c) where Chapter 4 applies, sections 55 and 56.
(1) These definitions apply in this Part (as well as the key definitions in section 2)—
“conditional sales contract” has the meaning given in section 5(3);
“Consumer Rights Directive” means Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council;
“credit-broker” means a person acting in the course of a business of credit brokerage carried on by that person;
“credit brokerage” means—
introducing individuals who want to obtain credit to persons carrying on any business so far as it relates to the provision of credit,
introducing individuals who want to obtain goods on hire to persons carrying on a business which comprises or relates to supplying goods under a contract for the hire of goods, or
introducing individuals who want to obtain credit, or to obtain goods on hire, to other persons engaged in credit brokerage;
“delivery” means voluntary transfer of possession from one person to another;
“enactment” includes—
an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978,
an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales,
an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament, and
an enactment contained in, or in an instrument made under, Northern Ireland legislation;
“producer”, in relation to goods or digital content, means—
the manufacturer,
the importer into the United Kingdom, or
any person who purports to be a producer by placing the person's name, trade mark or other distinctive sign on the goods or using it in connection with the digital content.
(2) References in this Part to treating a contract as at an end are to be read in accordance with section 19(13).
(1) This Part applies to a contract between a trader and a consumer.
(2) This does not include a contract of employment or apprenticeship.
(3) A contract to which this Part applies is referred to in this Part as a “consumer contract”.
(4) This Part applies to a notice to the extent that it—
(a) relates to rights or obligations as between a trader and a consumer, or
(b) purports to exclude or restrict a trader's liability to a consumer.
(5) This does not include a notice relating to rights, obligations or liabilities as between an employer and an employee.
(6) It does not matter for the purposes of subsection (4) whether the notice is expressed to apply to a consumer, as long as it is reasonable to assume it is intended to be seen or heard by a consumer.
(7) A notice to which this Part applies is referred to in this Part as a “consumer notice”.
(8) In this section “notice” includes an announcement, whether or not in writing, and any other communication or purported communication.
62 Requirement for contract terms and notices to be fair
(1) An unfair term of a consumer contract is not binding on the consumer.
(2) An unfair consumer notice is not binding on the consumer.
(3) This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.
(4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.
(5) Whether a term is fair is to be determined—
(a) taking into account the nature of the subject matter of the contract, and
(b) by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.
(6) A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer.
(7) Whether a notice is fair is to be determined—
(a) taking into account the nature of the subject matter of the notice, and
(b) by reference to all the circumstances existing when the rights or obligations to which it relates arose and to the terms of any contract on which it depends.
(8) This section does not affect the operation of—
(a) section 31 (exclusion of liability: goods contracts),
(b) section 47 (exclusion of liability: digital content contracts),
(c) section 57 (exclusion of liability: services contracts), or
(d) section 65 (exclusion of negligence liability).
63 Contract terms which may or must be regarded as unfair
(1) Part 1 of Schedule 2 contains an indicative and non-exhaustive list of terms of consumer contracts that may be regarded as unfair for the purposes of this Part.
(2) Part 1 of Schedule 2 is subject to Part 2 of that Schedule; but a term listed in Part 2 of that Schedule may nevertheless be assessed for fairness under section 62 unless section 64 or 73 applies to it.
(3) The Secretary of State may by order made by statutory instrument amend Schedule 2 so as to add, modify or remove an entry in Part 1 or Part 2 of that Schedule.
(4) An order under subsection (3) may contain transitional or transitory provision or savings.
(5) No order may be made under subsection (3) unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.
(6) A term of a consumer contract must be regarded as unfair if it has the effect that the consumer bears the burden of proof with respect to compliance by a distance supplier or an intermediary with an obligation under any enactment or rule implementing the Distance Marketing Directive.
(7) In subsection (6)—
“the Distance Marketing Directive” means Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC;
“distance supplier” means—
a supplier under a distance contract within the meaning of the Financial Services (Distance Marketing) Regulations 2004 (SI 2004/2095), or
a supplier of unsolicited financial services within the meaning of regulation 15 of those regulations;
“enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;
“intermediary” has the same meaning as in the Financial Services (Distance Marketing) Regulations 2004;
“rule” means a rule made by the Financial Conduct Authority or the Prudential Regulation Authority under the Financial Services and Markets Act 2000 or by a designated professional body within the meaning of section 326(2) of that Act.
(1) A term of a consumer contract may not be assessed for fairness under section 62 to the extent that—
(a) it specifies the main subject matter of the contract, or
(b) the assessment is of the appropriateness of the price payable under the contract by comparison with the goods, digital content or services supplied under it.
(2) Subsection (1) excludes a term from an assessment under section 62 only if it is transparent and prominent.
(3) A term is transparent for the purposes of this Part if it is expressed in plain and intelligible language and (in the case of a written term) is legible.
(4) A term is prominent for the purposes of this section if it is brought to the consumer's attention in such a way that an average consumer would be aware of the term.
(5) In subsection (4) “average consumer” means a consumer who is reasonably well-informed, observant and circumspect.
(6) This section does not apply to a term of a contract listed in Part 1 of Schedule 2.
65 Bar on exclusion or restriction of negligence liability
(1) A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence.
(2) Where a term of a consumer contract, or a consumer notice, purports to exclude or restrict a trader's liability for negligence, a person is not to be taken to have voluntarily accepted any risk merely because the person agreed to or knew about the term or notice.
(3) In this section “personal injury” includes any disease and any impairment of physical or mental condition.
(4) In this section “negligence” means the breach of—
(a) any obligation to take reasonable care or exercise reasonable skill in the performance of a contract where the obligation arises from an express or implied term of the contract,
(b) a common law duty to take reasonable care or exercise reasonable skill,
(c) the common duty of care imposed by the Occupiers' Liability Act 1957 or the Occupiers' Liability Act (Northern Ireland) 1957, or
(d) the duty of reasonable care imposed by section 2(1) of the Occupiers' Liability (Scotland) Act 1960.
(5) It is immaterial for the purposes of subsection (4)—
(a) whether a breach of duty or obligation was inadvertent or intentional, or
(b) whether liability for it arises directly or vicariously.
(6) This section is subject to section 66 (which makes provision about the scope of this section).
(1) Section 65 does not apply to—
(a) any contract so far as it is a contract of insurance, including a contract to pay an annuity on human life, or
(b) any contract so far as it relates to the creation or transfer of an interest in land.
(2) Section 65 does not affect the validity of any discharge or indemnity given by a person in consideration of the receipt by that person of compensation in settlement of any claim the person has.
(3) Section 65 does not—
(a) apply to liability which is excluded or discharged as mentioned in section 4(2)(a) (exception to liability to pay damages to relatives) of the Damages (Scotland) Act 2011, or
(b) affect the operation of section 5 (discharge of liability to pay damages: exception for mesothelioma) of that Act.
(4) Section 65 does not apply to the liability of an occupier of premises to a person who obtains access to the premises for recreational purposes if—
(a) the person suffers loss or damage because of the dangerous state of the premises, and
(b) allowing the person access for those purposes is not within the purposes of the occupier's trade, business, craft or profession.
67 Effect of an unfair term on the rest of a contract
Where a term of a consumer contract is not binding on the consumer as a result of this Part, the contract continues, so far as practicable, to have effect in every other respect.
(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.
69 Contract terms that may have different meanings
(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.
(2) Subsection (1) does not apply to the construction of a term or a notice in proceedings on an application for an injunction or interdict under paragraph 3 of Schedule 3.
70 Enforcement of the law on unfair contract terms
(1) Schedule 3 confers functions on the Competition and Markets Authority and other regulators in relation to the enforcement of this Part.
(2) For provision about the investigatory powers that are available to those regulators for the purposes of that Schedule, see Schedule 5.
(1) Subsection (2) applies to proceedings before a court which relate to a term of a consumer contract.
(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it.
(3) But subsection (2) does not apply unless the court considers that it has before it sufficient legal and factual material to enable it to consider the fairness of the term.
(1) This section applies if a term of a contract (“the secondary contract”) reduces the rights or remedies or increases the obligations of a person under another contract (“the main contract”).
(2) The term is subject to the provisions of this Part that would apply to the term if it were in the main contract.
(3) It does not matter for the purposes of this section—
(a) whether the parties to the secondary contract are the same as the parties to the main contract, or
(b) whether the secondary contract is a consumer contract.
(4) This section does not apply if the secondary contract is a settlement of a claim arising under the main contract.
73 Disapplication of rules to mandatory terms and notices
(1) This Part does not apply to a term of a contract, or to a notice, to the extent that it reflects—
(a) mandatory statutory or regulatory provisions, or
(b) the provisions or principles of an international convention to which the United Kingdom ... is a party.
(2) In subsection (1) “mandatory statutory or regulatory provisions” includes rules which, according to law, apply between the parties on the basis that no other arrangements have been established.
74 Contracts applying law of a country other than the UK
(1) If—
(a) the law of a country or territory other than the United Kingdom or any part of the United Kingdom is chosen by the parties to be applicable to a consumer contract, but
(b) the consumer contract has a close connection with the United Kingdom,
this Part applies despite that choice.
(2) For cases where the law applicable has not been chosen ..., see Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations as that Regulation has effect as assimilated direct legislation (including that Regulation as applied by regulation 5 of the Law Applicable to Contractual Obligations (England and Wales and Northern Ireland) Regulations 2009 and regulation 4 of the Law Applicable to Contractual Obligations (Scotland) Regulations 2009), unless the case is one in respect of which Regulation (EC) No. 593/2008 has effect by virtue of Article 66 of the EU withdrawal agreement, in which case see that Regulation as it has effect by virtue of that Article.
(1) In this Part—
“consumer contract” has the meaning given by section 61(3);
“consumer notice” has the meaning given by section 61(7);
“transparent” is to be construed in accordance with sections 64(3) and 68(2).
(2) The following have the same meanings in this Part as they have in Part 1—
“trader” (see section 2(2));
“consumer” (see section 2(3));
“goods” (see section 2(8));
“digital content” (see section 2(9)).
(3) Section 2(4) (trader who claims an individual is not a consumer must prove it) applies in relation to this Part as it applies in relation to Part 1.
78 Amendment of weights and measures legislation regarding unwrapped bread
(1) In the Weights and Measures (Packaged Goods) Regulations 2006 (S.I. 2006/659), Schedule 5 (application to bread) is amended in accordance with subsections (2) and (3).
(2) For paragraph 9 substitute—
9 Regulation 9(1)(b)(ii) (duty to keep records) does not apply to bread which is sold unwrapped or in open packs.
(3) After paragraph 13 insert—
Transitional provision
14 (1) Regulation 9(1)(b)(ii) (duty to keep records) does not apply to a packer who holds a notice of exemption which is in force.
(2) A “notice of exemption” means a notice issued under paragraph 9 as it stood before section 78 of the Consumer Rights Act 2015 came into force.
(4) The use of this Act to make amendments to the Weights and Measures (Packaged Goods) Regulations 2006 has no effect on the availability of any power in the Weights and Measures Act 1985 to amend or revoke those Regulations, including the provision substituted by subsection (2) and that inserted by subsection (3).
(5) In the Weights and Measures (Packaged Goods) Regulations (Northern Ireland) 2011 (SR 2011/331), Schedule 5 (application to bread) is amended in accordance with subsections (6) and (7).
(6) For paragraph 9 substitute—
9 Regulation 9(1)(b)(ii) (duty to keep records) does not apply to bread which is sold unwrapped or in open packets.
(7) After paragraph 13 insert—
Transitional provision
14 (1) Regulation 9(1)(b)(ii) (duty to keep records) does not apply to a packer who holds a notice of exemption which is in force.
(2) A “notice of exemption” means a notice issued under paragraph 9 as it stood before section 78 of the Consumer Rights Act 2015 came into force.
(8) The use of this Act to make amendments to the Weights and Measures (Packaged Goods) Regulations (Northern Ireland) 2011 has no effect on the availability of any power in the Weights and Measures (Northern Ireland) Order 1981 (SI 1981/231 (NI 10)) to amend or revoke those Regulations, including the provision substituted by subsection (6) and that inserted by subsection (7).
79 Enterprise Act 2002: enhanced consumer measures and other enforcement
(1) Schedule 7 contains amendments of Part 8 of the Enterprise Act 2002 (enforcement of certain consumer legislation).
(2) The amendments have effect only in relation to conduct which occurs, or which is likely to occur, after the commencement of this section.