Unfair terms in consumer contracts – important changes to the Fair Trading Act 1986

A 2018 Ministry of Business, Innovation & Employment (MBIE) survey of small businesses found that 45 per cent of participants considered that they had been offered unfair contract terms in the last year, and 47 per cent considered that they had otherwise been treated unfairly.[1]
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Despite the existing protections under the Commerce Act 1986, Fair Trading Act 1986, Consumer Guarantees Act 1993, and the Credit Contracts and Consumer Finance Act 2003, the Government considered that unfair practices were occurring due to gaps in the current framework, for example: 

  • Unfair contract terms: MBIE noted problems with unfair contract terms were likely to be concentrated in standard form contracts where one of the parties is small. 
  • Unfair conduct: the MBIE survey noted that much of the unfair conduct reported in the survey was already prohibited to some extent, or subject to common law remedies which suggests that businesses are not complying with the law and/or the threshold for prohibited conduct under the law is higher than the threshold that some businesses feel is unfair. 
A bustling farmers' market with shoppers selecting fresh produce from vendor tables. The tables are filled with vibrant vegetables like radishes, greens, and carrots. A canopy provides shade, and the city's tall buildings are visible in the background. Important changes to the Fair Trading Act 1986 ensure fair treatment for all shoppers.

The Fair Trading Amendment Bill (Bill) has passed its third reading. Once it receives the Royal Assent later this month, the Bill will amend the Fair Trading Act 1986 to: 

  • Extend the principal Act’s protections against unfair contract terms in standard form consumer contracts to include small trade contracts; and 
  • Prohibit unconscionable conduct in trade. 

The Bill also tightens rules around uninvited sellers on residential premises. 

These are significant changes to the law on business conduct. 

Businesses have 12 months before these changes come into force. Businesses should: 

  • Review all their standard form business contracts and ensure any contract terms which may be deemed unfair are removed in advance of August 2022; and 
  • Review business conduct and ensure that all staff are aware that the law will now specifically prohibit engaging in conduct that could be seen as acting in bad faith, exerting undue pressure or taking unfair advantage of a superior commercial or bargaining position. 
A laptop sits on a light blue surface next to a small shopping cart model and a stack of US dollar bills secured with a blue money clip, highlighting the importance of avoiding unfair contract terms in online shopping or e-commerce scenarios.

References

[1] Protecting businesses and consumers from unfair commercial practices, Discussion paper, Ministry of Business, Innovation and Enterprise, December 2018, p. 6.

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A person wearing a face mask is sitting in a dark room, illuminated by their laptop screen. Their hands are typing on the keyboard, perhaps drafting contracts or seeking insight from overseas courts during the pandemics lockdowns.

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When the COVID-19 pandemic first arrived in New Zealand, there was widespread discussion amongst the legal community about the impact the pandemic and the Government “lockdowns” might have on contracts.[1] Two main avenues for obtaining contractual relief were explored: the doctrine of frustration, and force majeure clauses.

With the recent move into a Level 4 lockdown, it’s timely for us to revisit our thinking on this. Have the courts been able to fill in some of the gaps we had in our understanding of how COVID-19 might affect contracts? Interestingly, there has been little comment from the courts on these matters – perhaps parties have reached settlement, or perhaps the disputes are still making their way through the backlogged courts. However, we do have two cases to consider: one from Ireland, and one from Wales.

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