好色先生TV

If you do business on your day off you鈥檙e doing business as a 鈥渃onsumer鈥�. If you buy an architect鈥檚 professional services for a kitchen extension, buy a builder鈥檚 services to put it up, buy a central heating system to keep it warm you are a consumer. If you sign up to a JCT building contract with your day-off hat on, don鈥檛 assume that the contract will apply if there is a dispute. It鈥檚 that word 鈥渃onsumer鈥� that changes things. When you have thrown aside your trowel, dungarees and laser level, you have been magically converted into a 鈥渃onsumer鈥�. And when things go wrong the smallprint in the contract sometimes gets pooh-poohed.

Martin Boston decided to engage a builder, Bryen & Langley, to knock two flats into one, in posh New Cavendish Street, London W1. It was a half-a-million-pound job. A JCT98 was used.

Mr Boston is not a developer, nor in the business of engaging builders to do work, nor a professional flat converter. Mr Boston and his missus just wanted the flat to live in; fair enough. There was a dispute when the account went miles over the anticipated contract sum. The builder wasn鈥檛 paid. The builder turned to his JCT98 and used the three pages of rules for adjudication. The adjudicator agreed the money was owed.

Mr Boston then said three things: he didn鈥檛 agree; the JCT wasn鈥檛 actually effective; and he was a 鈥渃onsumer鈥� and as such, the adjudication bumf in the JCT, if it applied at all, collided with the 鈥淯nfair Terms in Consumer Regulation 1999鈥�. So, adjudication didn鈥檛 apply to him even if he had signed a JCT contract plainly containing adjudication provisions.

They went to court. The judge accepted that no contract containing the JCT98 document came into effect. So the adjudicator鈥檚 decision was void for that reason alone. Nevertheless the judge went on to consider the important point about the effect of the consumer regulations and so called unfairness. The judge decided that there was no consumer unfairness in this case.

English law does not normally ask a party negotiating a contract to protect the other party from the consequences of his own folly

Mr Boston could not seek to oust adjudication by hurling the consumer regulations at the contract.

That鈥檚 all very interesting but let鈥檚 widen the discussion to the rationale for introducing such consumer regulations; or rather, let鈥檚 ask how different the hard-nosed commercial man is when it comes to dealing as a consumer. What鈥檚 the big difference? First, a consumer is someone contracting outside his trade, business or profession. That鈥檚 what I mean by doing business on your day off. So when the boss of 好色先生TVs 鈥楻鈥� Us buys building work for himself, lo, he is a consumer. By contrast, the seller or supplier is a person or company contracting to provide its trade, business or professional services. The consumer regulations shout 鈥渦nfair鈥� at contractual terms not individually negotiated if those terms are 鈥渃ontrary to the requirements of good faith鈥� and 鈥渃ause significant imbalance in the parties rights and obligations鈥� to the 鈥渄etriment of the consumer鈥�. The House of Lords in a case on the same topic (Director General of Fair Trading vs First National Bank plc) said: 鈥淐ontract terms should be expressed fully, clearly and legibly and contain no concealed pitfalls or traps. Appropriate prominence should be given to terms that might operate disadvantageously to the customer. Fair dealing requires that a supplier should not take advantage of the consumer鈥檚 necessity, indigence, lack of experience, or weak bargaining position.鈥�

So that鈥檚 how you are to be treated on your day off. But, when you go to the office and put your commercial hat on, does that mean you are free to scheme pitfalls, lay traps, operate disadvantageously, deliberately take advantage of those with lesser experience?

English law does not normally ask a party negotiating a contract to protect the other party from the consequences of its own folly. There is, in commercial terms at least, still freedom to contract. If you proffer a harsh set of terms and the other bloke says 鈥渙kay鈥�, the law provides that the adjudicator, arbitrator or judge will give effect to those harsh contract terms. Fortunately there is a whole grandstand of people willing to contract under the flag of fair dealing. As for the schemers and trapsters 鈥� do as you would be done by, eh?