Contract Law - The Trade Descriptions Act 1968 is Dead: Long Live The Consumer Protection from Unfair Trading Regulations 2008 (p.iii)

What this page is about: By Victor Smith, for the Justice of the Peace Since 1837 The Journal Dedicated to Magisterial and Local Government Law (2008) 172 JPN 560, 23 August 2008

The Future of Disclaimers

Disclaimers are most closely associated with offences under the TDA but, as Widgery LCJ said in Waltham Forest London Borough Council v. TG Wheatley (Central Garage) Ltd [1978] RTR 157, “the disclaimer notice is a creation of the courts. It isn't dealt with in the [TDA] at all”. Likewise, there's no express reference to disclaimers in the CPUTR but, just as the common law doctrine of disclaimer grew up with and was applied to the TDA, there is no reason to suppose that it won't have a similar application, albeit with some necessary variation, to the CPUTR. The fact that the CPUTR derives from a European Directive doesn't militate against the concept of disclaimers applying to the CPUTR. In the Estée Lauder case, previously, it was held that “in order to determine whether a particular description … is misleading, it's necessary to take into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect” and that, in order to apply that test to the facts of that case, one of the things to be determined was “whether the instructions for the use of the product are in themselves sufficient to make it quite clear that its effects are short-lived, accordingly neutralizing any conclusion to the contrary that might be derived from the word 'lifting'.” This concept of the words in a description being “neutralized” by the words of an associated statement is exceedingly close to what Widgery LCJ characterized as the doctrine of “disclaimer”.

To view the rest of this page, you must be logged in. Please log in or register - it's free, it takes less than 30 seconds and your details are safe.

Forgot your password? Lost password

Not yet registered? Register now - it's free and takes less than 30 seconds!

Log in

Your email address:

Your password:

(case sensitive)

Also in this section: