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Chapter

Cover Information Technology Law

18. Consumer protection  

This chapter examines how consumers are protected when they go online. It examines the extensive protections offered by the Consumer Rights Directive to distance agreements (including online agreements). The rules on jurisdiction, choice of law, and enforcement are examined alongside what rights the consumer has to receive information and to cancel contracts agreed at a distance. In addition, this chapter examines the suite of rights created by the Consumer Rights Act 2015 and in particular the new provisions therein which digital content (including software, apps, and in-game content among others). The chapter continues with a discussion of the regulation of unsolicited commercial communications or spam including a discussion of the Directive on Privacy and Electronic Communications, GDPR, and the proposed ePrivacy Regulation. The chapter accounts for changes in the legal framework caused by Brexit.

Chapter

Cover Information Technology Law

18. Consumer protection  

This chapter examines how consumers are protected when they go online. It examines the extensive protections offered by the Consumer Rights Directive to distance agreements (including online agreements). The rules on jurisdiction, choice of law, and enforcement are examined alongside what rights the consumer has to receive information and to cancel contracts agreed at a distance. In addition, this chapter examines the suite of rights created by the Consumer Rights Act 2015 and, in particular, the new provisions therein which digital content (including software, apps, and in-game content among others). The chapter continues with a discussion of the regulation of unsolicited commercial communications or spam, including a discussion of the Directive on Privacy and Electronic Communications, GDPr, and the proposed ePrivacy Regulation. The chapter concludes with a discussion of the proposed online sales and Digital Content Directives.

Chapter

Cover The Oxford Handbook of Criminology

25. Crime and consumer culture  

Keith Hayward and Oliver Smith

Proceeding from a theoretical perspective, this chapter examines the various relationships that exist between consumer culture and crime. The chapter starts by looking at criminology’s past, and a short review of some of the main theories/theorists that have actually trained attention on consumerism as a criminogenic phenomenon. This section also includes a critique of the supposed oppositional potential of consumerism that dominated the social sciences until relatively recently. Turning to the present, the chapter then introduces three distinct but complementary perspectives that offer a more useful and critical explanation of ‘the crime-consumerism nexus’. First, cultural criminology addresses the criminogenic impact of global capitalism at the level of cultural discourse and everyday transgression. Second, ultra-realist criminology identifies the damage caused by consumer capitalism, and more specifically how the dominance of neoliberal ideology shapes the deep-rooted desires and drives behind much identity-driven criminality. Finally, the deviant leisure perspective draws on both these positions to illustrate how dominant forms of commodified leisure drive a range of social, environmental, and individual harms. The relationship between crime and consumerism is not a simple one but, as this chapter argues, it is one that demands serious and critical criminological attention.

Chapter

Cover The Oxford Handbook of Criminology

13. Crime and consumer culture  

Keith Hayward and Oliver Smith

Proceeding from a theoretical perspective, this chapter examines the various relationships that exist between consumer culture and crime. The chapter starts by looking to criminology’s past, and a short review of some of the main theories/theorists that have actually trained attention on consumerism as a criminogenic phenomenon. This section also includes a critique of the supposed oppositional potential of consumerism that dominated the social sciences until relatively recently. Turning to the present, the chapter then introduces three distinct but complimentary perspectives that offer a more useful and critical explanation of ‘the crime-consumerism nexus’. First, cultural criminology addresses the criminogenic impact of global capitalism at the level of cultural discourse and everyday transgression. Second, ultra realist criminology identifies the damage caused by consumer capitalism, and more specifically how the dominance of neoliberal ideology shapes the deep-rooted desires and drives behind much identity-driven criminality. Finally, the deviant leisure perspective draws on both these positions to illustrate how dominant forms of commodified leisure drive a range of social, environmental, and individual harms. The relationship between crime and consumerism is not a simple one but, as this chapter argues, it is one that demands serious and critical criminological attention.

Chapter

Cover Complete Contract Law

13. Misrepresentation  

This chapter explains the law relating to the requirements and remedies for misrepresentation. The rules that the chapter covers developed originally in the context of all types of contracts. However, more recent legislation has introduced some specific protection for consumers. Consequently, the common law rules and older legislation that the chapter covers are now more applicable to non-consumer contracts, i.e. contracts between businesses and those between private parties. The chapter starts by addressing the kind of false statements that can result in a remedy. It then addresses the common law and legislative remedies that could be available to the innocent party. Finally, the chapter turns to the impact of the more recent consumer legislation before finally examining the extent to which an exemption clause could cover liability for misrepresentation.

Chapter

Cover Commercial Law Concentrate

11. Consumer credit  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses some of the key common law and statutory provisions relating to consumer credit agreements and the common issues that arise. It first explains the provisions of the Consumer Credit Act 1974, as amended by the Consumer Credit Act 2006. The chapter then considers the rights of debtors who take credit under a ‘regulated agreement’, along with the (previous) extortionate credit bargain provisions that have been replaced by a test which considers whether there was an unfair relationship between the debtor and the creditor. It also considers consumer hire agreements, exempt agreements, small agreements, and non-commercial agreements, as well as the liability of the creditor for the seller’s misrepresentation or breach of contract, retaking of protected goods, and the debtor’s right to complete payments ahead of time.

Chapter

Cover Markesinis & Deakin's Tort Law

20. Product Liability  

This chapter begins by tracing the evolution of product liability law in England and America. It then discusses the causes of action and components of liability. Liability evolved from an initial position in which the law of negligence played a minor role in compensating victims of dangerously defective products, thanks largely to the ‘privity of contract fallacy’. Donoghue v. Stevenson put an end to this and ushered in the modern, all-embracing duty of care as far as physical injury and property damage are concerned. With the adoption of Directive 85/374/EEC and its subsequent implementation in the form of the Consumer Protection Act 1987, a form of strict or ‘stricter’ liability based on the American model was incorporated into English law.

Chapter

Cover European Union Law

23. European consumer law  

Geraint Howells and Jonathon Watson

This chapter examines EU consumer law. In recent years, international, supranational, and national events alongside technological developments have had and will continue to have a profound effect on EU consumer law. The Covid-19 pandemic has changed consumption habits which, together with rapid digitalization, have created new challenges and risks for consumers, testing the limits not only of older but also more recent EU consumer legislation in a range of sectors. In this context, this chapter discusses the negative impact of EU law on national consumer protection rules; rules on information duties (including the duty to not mislead) and the right of withdrawal; rules establishing consumer expectations; rules on product safety and product liability; and rules on unfair terms and sale of goods. The chapter also covers EU legislation providing general substantive rights; enforcement of consumer protection rules; and consumers’ right of private redress.

Chapter

Cover European Union Law

22. European consumer law  

Geraint Howells

This chapter examines EU consumer law. It discusses the negative impact of EU law on national consumer protection rules; rules on information duties (including the duty to not mislead) and the right of withdrawal; rules establishing consumer expectations; rules on product safety and product liability; and rules on unfair terms and sale of goods. The chapter also covers EU legislation providing general substantive rights; enforcement of consumer protection rules; and consumers’ right of private redress.

Chapter

Cover Business Law Concentrate

4. Contract III: contractual terms and statutory protection  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses contractual terms and statutory protection. Parties to a contract may express terms and/or terms may be implied. The sources and effects of implied terms are essential to the rights of the parties and obligations imposed on them. Terms can be implied through the courts, through customs, and from statute. Terms are identified as conditions, warranties, or innominate and this distinction is relevant when identifying remedies for breach. Statutes regulate the rights and obligations applicable to consumers and traders. These include the Sale of Goods Act 1979, the Unfair Contract Terms Act 1977, and the substantial changes in contracts between consumers and traders introduced through the Consumer Rights Act 2015.

Chapter

Cover Concentrate Questions and Answers Tort Law

6. Product Liability  

Dr Karen Dyer and Dr Anil Balan

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. The chapter discusses the law on product liability. It covers key debates, sample questions, diagram answer plan, tips for getting extra marks, and online resources. To answer questions on this topic, students need to understand the following: the general principles of negligence; the meaning of strict liability; and the Consumer Protection Act 1987 and its relationship with the common law regarding consumer protection.

Chapter

Cover Poole's Textbook on Contract Law

1. Introduction to the law of contract  

Robert Merkin, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. Contracts are legally enforceable agreements intended for planned exchanges that are regulated by the principles of contract law. This chapter looks at some of the main theories underpinning the development of English contract law and examines the nature of contractual liability. Contractual obligations arise largely from party agreement and this distinguishes contractual liability from liability in tort. Given the continued relevance of English law in a globalized world (in spite of the UK exiting the European Union), this chapter also briefly introduces the various attempts to produce a set of harmonized principles such as the Common European Sales Law, along with the impact of other international developments including the growth in e-commerce and electronic communications. Moreover, the chapter analyses the most significant European directives and their effect on the development of English contract law, especially in the context of consumer contracts. The implementation of these European directives has resulted in the introduction of the concept of ‘good faith’ into English contract law. Given the increasing importance of good faith as a concept, especially when in the context of ‘a relational contract’, the chapter gives detailed discussion on the scope of and application of good faith in performance of the contract. Finally, the chapter considers the implementation of the Consumer Rights Directive in a number of statutory instruments and the Consumer Rights Act 2015.

Chapter

Cover Poole's Textbook on Contract Law

1. Introduction to the law of contract  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. Contracts are legally enforceable agreements intended for planned exchanges that are regulated by the principles of contract law. This chapter looks at some of the main theories underpinning the development of English contract law and examines the nature of contractual liability. Contractual obligations arise largely from party agreement, and this distinguishes contractual liability from liability in tort. Given the continued relevance of English law in a globalized world (in spite of the UK exiting the European Union), this chapter also briefly introduces the various attempts to produce a set of harmonized principles such as the Common European Sales Law, along with the impact of other international developments including the growth in e-commerce and electronic communications. Moreover, the chapter analyses the most significant European directives and their effect on the development of English contract law, especially in the context of consumer contracts. The implementation of these European directives has resulted in the introduction of the concept of ‘good faith’ into English contract law. Given the increasing importance of good faith as a concept, especially in the context of ‘a relational contract’, the chapter gives detailed discussion on the scope of and application of good faith in performance of the contract. Finally, the chapter considers the implementation of the Consumer Rights Directive in a number of statutory instruments and the Consumer Rights Act 2015.

Chapter

Cover Commercial Law

11. The transfer of property and risk  

This chapter discusses the transfer of property between seller and buyer, and considers the passing of risk. The general rule about risk is that unless the parties have otherwise agreed, risk passes with property, although the position is different when the buyer deals as consumer. With regard to payment, unless otherwise agreed, the seller may only sue the buyer for the price once property in the goods has passed, and, if either the seller or the buyer becomes insolvent, then the rights of the other non-insolvent party may depend on whether or not property in the goods has passed to the buyer. Furthermore, although subject to a number of exceptions, unless the buyer has acquired ownership in the goods, he cannot transfer that ownership to another party.

Chapter

Cover JC Smith's The Law of Contract

19. Unconscionable bargains and inequality of bargaining power  

This chapter considers the law on unconscionability and inequality of bargaining power. English law has traditionally been cautious about wholeheartedly adopting such sweeping principles as ‘unconscionability’, preferring instead to avoid unfair outcomes through particular doctrines (for example, misrepresentation, duress, and undue influence). Some contracts may be set aside if they are considered to be an ‘unconscionable bargain’, i.e. if the claimant is ‘poor and ignorant’, the terms of the contract are substantially disadvantageous to the claimant, and the claimant had no independent advice. There is no general principle in English law that a contract can be set aside due to inequality of bargaining power.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

10. Exemption clauses and legislation  

This chapter deals with the statutory policing of exemption clauses under the Unfair Contract Terms Act 1977 (UCTA) and addresses the changes to the law made by the Consumer Rights Act 2015. It explains the structure of UCTA and how to use it. It considers the different types of situations in which exemption clauses fall within it, under different sections (e.g. s 2 negligence, s 3 written standard terms of business, s 6 and s 7 goods contracts), and the need to consider whether a section renders a clause automatically ineffective or subjects it to the requirement of reasonableness. It looks at the application of the requirement of reasonableness and factors which have been identified as significant, such as the potential for insurance, the availability of alternatives, and reasons for a level of limitation. It considers the meaning of the UCTA’s definition of ‘deals as consumer’.

Chapter

Cover Complete Contract Law

7. Exemption Clauses and Unfair Terms  

This chapter assesses exemption clauses and unfair terms. Exemption clauses are terms that either exclude or limit the liability of a party. The law relating to the use of such clauses is a mixture of rules found in both the common law and legislation; the common law rules apply to all contracts. In addition, the Unfair Contract Terms Act 1977 applies to the use of exemption clauses in contracts between two businesses. For consumers, the Consumer Rights Act 2015 provides wider protection from unfair terms including exemption clauses. The practical context of exemption clauses is simple. One party will be in breach and so the other will seek compensation for the loss caused by the breach. The party in breach will then defend the action by relying on an exemption clause. The dispute is then about whether or not the clause can be relied upon. The circumstances in which terms might be assessed for being ‘unfair’ can be wider than this. Typically, a business will take action against a consumer following the consumer’s failure to perform an obligation, which will then prompt the consumer to challenge the obligation as based on an unfair term.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

8. Terms of the contract II: common law and statutory controls on unfair terms  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines potentially unfair terms, including exemption clauses, in a contract. It considers the common law’s response to exemption clauses and other potentially unfair terms, and discusses statutory schemes to regulate them. It covers the Unfair Contract Terms Act 1977 (UCTA) which governs exemption clauses in non-consumer contracts, subjecting them to a requirement of reasonableness where the contract was made on standard terms. It also discusses in detail the Consumer Rights Act 2015 (CRA), which regulates terms in consumer contracts, prohibiting certain exclusion clauses completely and imposing a general test of fairness upon all terms apart from the core terms.

Chapter

Cover Tort Law Directions

10. Product liability  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Manufacturers and producers are liable for personal injury or damage to property caused by a defective product. The claimant will not only recover in contract for personal injury and property damage caused by the defective product, but he will also be compensated for the cost of replacing the product itself. The Consumer Protection Act 1987 involves a strict liability regime for defective products on a variety of potential defendants. This chapter discusses the limitations of the tort system in providing compensation to a victim of harm caused by a defective product, and analyses the scope and limitations of the Consumer Protection Act 1987.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

11. Unfair terms in consumer contracts  

This chapter addresses the Directive on Unfair Terms in Consumer Contracts and its implementing legislation: the Unfair Terms in Consumer Contracts Regulations 1999 and the Consumer Rights Act 2015. The legislation is of broad application to unfair terms in consumer contracts. The fairness test, with its reference to good faith, and significant imbalance in the rights and obligations of the parties, is considered. The ‘core exemption’, from the fairness test, of price terms and those dealing with the main subject matter of the contract is looked at. The tensions in the different approaches to ‘core exemption’ in the Court of Appeal and the Supreme Court in Abbey National, and the different emphases on freedom of contract, and protection of the weaker party, are highlighted.