Discuss the mechanisms used to control exclusion clauses and unfair terms in a consumer contract
The law dealing with unfair contract terms, which affected ordinary people in their everyday lives, was unnecessarily complicated and difficult to understand. A new statutory framework has been introduced in the form of the Consumer Rights Act 2015 which has provided clear, effective and comprehensive protection for consumers.
Undertake an evaluation of this statement and explain why you either agree or disagree with it.
Learning outcomes
TMA 02 tests the following outcomes:
Knowledge
Discuss the mechanisms used to control exclusion clauses and unfair terms in a consumer contract
Explain why the Consumer Rights Act 2015 was introduced
Evaluate the effectiveness of the Consumer Rights Act 2015
Skills
Digital literacy through the use of module materials and/or online legal databases
Evaluative skills
Communication skills
Referencing skills.
Advice
Important information
The Law undergraduate guide (LUG) contains definitions of words used in TMA questions. It also gives advice on referencing and the reference list you must include at the end of your TMA. You should read this guide before attempting TMA 02.
Preparing for this essay question
This essay is asking you to discuss the mechanisms used to control exclusion clauses and unfair terms in a consumer contract. You were introduced to the nature of terms and different types of terms in units 4 and 5. These two units discussed how express terms and implied terms will form part of a contract. In unit 6 you developed your understanding of exclusion clauses (terms) and how legal rules have been put in place to control the use of exclusion clause and unfair terms. This essay is asking you to undertake an evaluation of the legal rules that deal with these clauses. You will need to explain why the Consumer Rights Act 2015 was introduced and evaluate its effectiveness.
You will need to refer to your Contract Law textbook. Chapter 6 of Furmston (2017). Pages 243-263 provide a good overview of the legal rules dealing with legislative provisions and in the latter section of this reading the focus is on consumer contracts and the Consumer Rights Act 2015.
Unit 6 of your module materials will provide you with materials that will support you with your preparation for this essay. This unit provided information on the role of legislation and how it is used to control exclusion clauses and unfair terms. In particular you should consider the materials dealing with the Consumer Rights Act 2015. This legislation was introduced to you in unit 5 and was developed in unit 6.
You may also consider the Law Commission report which provided advice for the then Department for Business, Innovation and Skills (BIS) which was produced in March 2013. This report provided advice for the BIS department on unfair terms in a consumer contract and is available using this link.
You may also use the following articles to consider the reasons why the Consumer Rights Act 2015 was introduced and they have considered the effectiveness of this legislation:
Cartwright, P. (2016) Redress Compliance and Choice: Enhanced Consumer Measures and the Retreat from Punishment in the Consumer Rights Act 2015, Cambridge Law Journal, Vol.75, Issue 2, pp.271-300.
Giliker, P. (2017) The Consumer Rights Act 2015 A Bastion of European Rights? Legal Studies, Vol.37, No.1, pp.78-102.
Focus points whilst preparing your essay
The learning outcomes for this essay are explicit. They are asking you to:
Discuss the mechanisms used to control exclusion clauses and unfair terms in a consumer contract you need to demonstrate your understanding by discussing these mechanisms. Say how exclusion clauses and unfair terms are controlled when dealing with a consumer contract.
Explain why the Consumer Rights Act 2015 was introduced you need to explain what the problem was and why this legislation was introduced.
Evaluate the effectiveness of the Consumer Rights Act 2015 you need to assess this legislation. Has it solved the problem? You must demonstrate evaluative skills whilst addressing this learning outcome.
Finally, you should end your essay with an appropriate conclusion that is consistent with the explanations you have given throughout the essay. You have been asked whether or not you agree with the statement. Please ensure you address this part of the question.
Referencing
You may refer to the Law undegraduate guide (LUG) which will provide additional guidance on referencing, structure and the word count. In TMA 01 you developed your in-text referencing skills, structure and your presentation of your reference list. Please ensure you demonstrate these skills when presenting your completed assessment.
Cite Them Right
Students should note that for almost all OU modules whose presentation begins in or after October 2021, students are instructed to use the Cite Them Right (CTR) version of Harvard (instead of OU Harvard) for referencing.
Students studying Law undergraduate modules should use:
the CTR version of Harvard for general academic sources, for consistency with the rest of the OU
and
the CTR version of OSCOLA (Oxford University Standard for the Citation of Legal Authorities), for consistency with almost all the other Law Schools in England and Wales, for all items identified under the ‘Legal’ tab in the CTR version of OSCOLA.
Most Law assignments will require both types of reference, so each piece of work is likely to include:
Harvard in-text citations, and a reference list, for general academic sources
and
OSCOLA in-text footnote numbers, and footnotes, for legal sources.
Additional information on referencing is available in the LUG.
Check the meaning of verbs
To ensure that you answer the questions properly, use the LUG to check the following:
the meaning of describe, explain and evaluate Words used in assessments
