SUB-CONTRACTING; HOW DO YOU ENFORCE ONEROUS TERMS & CONDITIONS IN THE CONTRACT

ONEROUS TERMS AND CONDITIONS IN SUPPLIER'S CONTRACTS 

•These are unusual, particular, non-standard or extraordinary terms and conditions of contract usually embedded in the fine print at the footers and reverse side of quotations or pro-formas by a seller, supplier, service provider or sub-contractor 

•Egs.  Fixing the defective work of a previous contractor, 14 day payment cycle etc

•Sometimes these onerous terms and conditions are unfair, ill-considered and one sided terms and conditions that favor only one party to the contract. 

•for example, any onerous terms and conditions that limit or exclude liability for damages, or indeed any provisions which might cause a significant imbalance in the other party's rights.

•Eg. Shylock Vs Antonio-”Pound of flesh”

Consumer Protection Laws are usually enacted to protect the buyer /consumers against these  unfair,ill-considered and one-sided onerous terms and conditions

TWO(2) CONDITIONS FOR ENFORCEABILITY 

1) it must comply to the consumer protection law to ensure these onerous terms and conditions does not violate the buyer’s rights under the law.

2) The Other party(buyer/consumer) must have knowledge of it  ie Specific and sufficient attention of the buyer drawn to it as at the time of signing the contract. Otherwise it won’t be upheld or accepted as part of the contract between the two parties.

•“Let the buyer beware”

•Litigants(sellers) do not have power to enforce the onerous conditions in a contract if the buyer does not have sufficient knowledge of it.

•The onerous terms can only be enforceable if the seller can prove beyond any reasonable doubt that the attention of the other party(buyer) had been drawn to the presence of the Onerous conditions or terms in the contract at the time the contract was entered via the initials/signature of the buyer/consumer

CASE LAW 

INTERFOTO PICTURE LIBRARY LTD V. STILETTO VISUAL PROGRAMMES (1987)

•It was held in the case of Interfoto Picture Library Ltd v. Stiletto Visual Programmes (1987) that the party seeking to enforce a particularly onerous condition in a contract has to demonstrate that the other party was sufficiently aware of the condition in question. If this could not be demonstrated, then the condition would not be incorporated into the contract.

•The defendants in this case failed to return some transparencies to the plaintiff agency and incurred a charge of £5 per day plus VAT per transparency. The total sum in contention was £3,783.50.

•It was held by the court that, when the contract was entered into, the plaintiff should have specifically drawn the defendant’s attention to the charge for the late return of the negatives. Because of this failure, the court reduced the charge from £5 per day per transparency to a more reasonable charge of £3.50 per transparency per week.

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