Contract Issues
Sale of Goods and Supply of Services Act 1980
Part VI.
Supplementary.
F14[
Exclusion of implied terms and conditions.
55.—(1) Subject to the subsequent provisions of this section, where any right, duty or liability would arise under a contract of sale of goods by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by usage if the usage is such as to bind both parties to the contract.
(2) An express condition or warranty does not negative a condition or warranty implied by this Act unless inconsistent therewith.
(3) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 12 of this Act shall be void.
(4) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 13, 14 or 15 of this Act shall be void where the buyer deals as consumer and shall, in any other case, not be enforceable unless it is shown that it is fair and reasonable.
(5) Subsection (4) shall not prevent the court from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any of the provisions of section 13, 14 or 15 of this Act is not a term of the contract.
(6) Any reference in this section to a term exempting from all or any of the provisions of any section of this Act is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of all or any of the provisions of that section, or the exercise of a right conferred by any provision of that section, or any liability of the seller for breach of a condition or warranty implied by any provision of that section.
(7) Any reference in this section to a term of a contract includes a reference to a term which although not contained in a contract is incorporated in the contract by another term of the contract.
(8) This section is subject to section 61 (6) of this Act.]
Annotations:
Amendments:
F14
Substituted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 22, commenced as per s. 1(2).
Modifications (not altering text):
C12
Application of section extended (19.05.1997) by European Communities (Contracts For Time Sharing of Immovable Property — Protection of Purchasers) Regulations 1997 (S.I. No. 204 of 1997), reg. 12.
Contracting out of obligation or denial of rights under Regulations not binding
12.— Any clause of a contract whereby a purchaser renounces the purchaser’s freedom or rights under these Regulations or whereby a vendor is freed from the vendor’s responsibilities arising from these Regulations shall not be binding on the purchaser, under conditions as set out in sections 55 of the Sale of Goods Act, 1893, (as inserted by section 22 of the Sale of Goods and Supply of Services Act, 1980), and section 40 (1) of the Sale of Goods and Supply of Services Act, 1980.
C13
Term “fair and reasonable” construed (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 2(3), commenced as per s. 1(2).
Interpretation generally.
2.— …
(3) Where, under section 13, 31, 40 or 46 of this Act or under section 55 of the Act of 1893 (inserted by section 22 of this Act), a question arises as to whether a term, agreement or provision is fair and reasonable regard shall be had to the criteria set out in the Schedule in deciding it.
Schedule
1.— In determining for the purposes of section 13, 31, 40 or 46 of this Act or section 55 of the Act of 1893 (inserted by section 22 of this Act) if a term is fair and reasonable the test is that it shall be a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in contemplation of the parties when the contract was made.
…
C14
Application of subs. (1) restricted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 12(3), commenced as per s. 1(2).
Implied warranty for spare parts and servicing.
12.—…
(3) Notwithstanding section 55 (1) of the Act of 1893 (inserted by section 22 of this Act) any term of a contract exempting from all or any of the provisions of this section shall be void.
C15
Application of subs. (1) restricted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 13(9), commenced as per. s. 1(2).
Implied condition on sale of motor vehicles.
13.— …
(9) Notwithstanding section 55 (1) of the Act of 1893 (inserted by section 22 of this Act) any term of a contract exempting from all or any of the provisions of this section shall be void.
F15[Conflict of laws.
55A.—Where the proper law of a contract of sale of goods would, apart from a term that it should be the law of some other country or a term to the like effect, be the law of Ireland or where any such contract contains a term which purports to substitute, or has the effect of substituting, provisions of the law of some other country for all or any of the provisions of sections 12 to 15 and 55 of this Act, those sections shall, notwithstanding that term but subject to section 61 (6) of this Act, apply to the contract.]
Annotations:
Amendments:
F15
Inserted (31.12.1980) by Sale of Goods and Supply of Services Act 1980 (16/1980), s. 23, commenced as per s. 1(2).
Reasonable time a question of fact.
56.—Where, by this Act, any reference is made to a reasonable time the question what is a reasonable time is a question of fact.
Rights, &c. enforceable by action.
57.—Where any right, duty, or liability is declared by this Act, it may, unless otherwise by this Act provided, be enforced by action.
Auction sales.
58.—In the case of a sale by auction—
(1) Where goods are put up for sale by auction in lots, each lot is primâ facie deemed to be the subject of a separate contract of sale:
(2) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made any bidder may retract his bid:
(3) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person: Any sale contravening this rule may be treated as fraudulent by the buyer:
(4) A sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller.
Where a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction.
Sale of Goods and Supply of Services Act 1980
Statements purporting to restrict rights of buyer.
11.— (1) Subsections (2) and (3) apply to any statement likely to be taken as indicating that a right or the exercise of a right conferred by, or a liability arising by virtue of, section 12, 13, 14 or 15 of the Act of 1893 is restricted or excluded otherwise than under section 55 of that Act.
(2) It shall be an offence for a person in the course of a business to do any of the following things in relation to a statement to which subsection (1) refers:
( a) to display on any part of any premises a notice that includes any such statement, or
( b) to publish or cause to be published an advertisement which contains any such statement, or
( c) to supply goods bearing, or goods in a container bearing, any such statement, or
( d) otherwise to furnish or to cause to be furnished a document including any such statement.
(3) For the purposes of this section a statement to the effect that goods will not be exchanged, or that money will not be refunded, or that only credit notes will be given for goods returned, shall be treated as a statement to which subsection (1) refers unless it is so clearly qualified that it cannot be construed as applicable in circumstances in which the buyer may be seeking to exercise a right conferred by any provision of a section mentioned in subsection (1).
(4) It shall be an offence for a person in the course of a business to furnish to a buyer goods bearing, or goods in a container bearing, or any document including, any statement, irrespective of its legal effect, which sets out, limits or describes rights conferred on a buyer or liabilities to the buyer in relation to goods acquired by him or any statement likely to be taken as such a statement, unless that statement is accompanied by a clear and conspicuous declaration that the contractual rights which the buyer enjoys by virtue of sections 12, 13, 14 and 15 of the Act of 1893 are in no way prejudiced by the relevant statement.
Implied warranty for spare parts and servicing.
12.— (1) In a contract for the sale of goods there is an implied warranty that spare parts and an adequate aftersale service will be made available by the seller in such circumstances as are stated in an offer, description or advertisement by the seller on behalf of the manufacturer or on his own behalf and for such period as is so stated or, if no period is so stated, for a reasonable period.
(2) The Minister may, after such consultation with such interested parties as he thinks proper, by order define, in relation to any class of goods described in the order, what shall be a reasonable period for the purpose of subsection (1).
(3) Notwithstanding section 55 (1) of the Act of 1893 (inserted by section 22 of this Act) any term of a contract exempting from all or any of the provisions of this section shall be void.
Annotations:
Modifications (not altering text):
C8
Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996.
Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements.
81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller.
Implied condition on sale of motor vehicles.
13.— (1) In this section “ motor vehicle” means a vehicle intended or adapted for propulsion by mechanical means, including—
( a) a bicycle or tricycle with an attachment for propelling it by mechanical power, and
( b) a vehicle the means of propulsion of which is electrical or partly electrical and partly mechanical.
(2) Without prejudice to any other condition or warranty, in every contract for the sale of a motor vehicle (except a contract in which the buyer is a person whose business it is to deal in motor vehicles) there is an implied condition that at the time of delivery of the vehicle under the contract it is free from any defect which would render it a danger to the public, including persons travelling in the vehicle.
(3) Subsection (2) of this section shall not apply where—
( a) it is agreed between the seller and the buyer that the vehicle is not intended for use in the condition in which it is to be delivered to the buyer under the contract, and
( b) a document consisting of a statement to that effect is signed by or on behalf of the seller and the buyer and given to the buyer prior to or at the time of such delivery, and
( c) it is shown that the agreement referred to in paragraph (a) is fair and reasonable.
(4) Save in a case in which the implied condition as to freedom from defects referred to in subsection (2) is either not incorporated in the contract or has been effectively excluded from the contract pursuant to that subsection, in the case of every sale of a motor vehicle by a person whose business it is to deal in motor vehicles a certificate in writing in such form as the Minister may by regulations prescribe shall be given to the buyer by or on behalf of the seller to the effect that the vehicle is, at the time of delivery, free from any defect which would render it a danger to the public, including persons travelling in the vehicle.
(5) Where an action is brought for breach of the implied condition referred to in subsection (2) by reason of a specific defect in a motor vehicle and a certificate complying with the requirements of this section is not proved to have been given, it shall be presumed unless the contrary is proved that the proven defect existed at the time of delivery.
(6) Regulations under subsection (4) may apply to motor vehicles generally or to motor vehicles of a particular class or description (defined in such manner and by reference to such things as the Minister thinks proper) and different forms of certificate may be prescribed for different classes or descriptions of vehicles.
(7) A person using a motor vehicle with the consent of the buyer of the vehicle who suffers loss as the result of a breach of the condition implied by subsection (2) in the contract of sale may maintain an action for damages against the seller in respect of the breach as if he were the buyer.
(8) The Statute of Limitations, 1957, is hereby amended—
(I) by the insertion in section 11 (2) of the following paragraph—
“( d) An action for damages under section 13 (7) of the Sale of Goods and Supply of Services Act, 1980, shall not be brought after the expiration of two years from the date on which the cause of action accrued.”;
(II) by the insertion in section 49 of the following subsection—
“(5) In the case of an action claiming damages under section 13 (7) of the Sale of Goods and Supply of Services Act, 1980, subsection (1) of this section shall have effect as if for the words ‘six years’ there were substituted the words ‘ two years’.”.
(9) Notwithstanding section 55 (1) of the Act of 1893 (inserted by section 22 of this Act) any term of a contract exempting from all or any of the provisions of this section shall be void.
Annotations:
Modifications (not altering text):
C9
Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 82, S.I. No. 121 of 1996.
Application of section 13 of Act of 1980 to hire-purchase of motor vehicles.
82.—Where a motor vehicle is let under a hire-purchase agreement, section 13 (which relates to an implied condition on sale of motor vehicles) of the Act of 1980 shall have effect as if a contract for sale were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller, and the owner shall, jointly with that person and severally, be answerable to the hirer for breach of the implied condition.
C10
Application of Act restricted (10.07.1991) by Statute of Limitations (Amendment) Act 1991 (18/1991), s.3(3), commenced on enactment.
Special time limit for actions in respect of personal injuries.
3.— …
(3) Notwithstanding section 11 (2) (d) (inserted by section 13 (8) of the Sale of Goods and Supply of Services Act, 1980 ) of the Principal act, an action for damages under section 13 (7) of the said Act of 1980 which consist of or include damages in respect of personal injuries to any person may be brought within two years of the date of knowledge of the person injured if that date is later than the date on which the cause of action accrued.
…
C11
Application of Act restricted (10.07.1991) by Statute of Limitations (Amendment) Act 1991 (18/1991), s. 5(3), commenced on enactment.
Extension of limitation period in case of disability.
5.— …
(3) Notwithstanding section 49 (5) of the Principal act (inserted by section 13 (8) of the Sale of Goods and Supply of Services Act, 1980), in the case of an action under section 13 (7) of the said Act of 1980, of the kind to which section 3 of this Act applies, subsections (1) and (2) of this section shall have effect as if for the words “three years” there were substituted the words “two years”.
…
Liability of finance houses.
14.— Where goods are sold to a buyer dealing as consumer and in relation to the sale an agreement is entered into by the buyer with another person acting in the course of a business (in this section referred to as a finance house) for the repayment to the finance house of money paid by the finance house to the seller in respect of the price of the goods, the finance house shall be deemed to be a party to the sale and the finance house and the seller shall, jointly and severally, be answerable to the buyer for breach of the contract of sale and for any misrepresentations made by the seller with respect to the goods.
Guarantees
Definition of guarantee.
15.— In sections 16 to 19, “ guarantee” means any document, notice or other written statement, howsoever described, supplied by a manufacturer or other supplier, other than a retailer, in connection with the supply of any goods and indicating that the manufacturer or other supplier will service, repair or otherwise deal with the goods following purchase.
Annotations:
Modifications (not altering text):
C12
Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996.
Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements.
81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller.
Terms of guarantee.
16.— (1) A guarantee shall be clearly legible and shall refer only to specific goods or to one category of goods.
(2) A guarantee shall state clearly the name and address of the person supplying the guarantee.
(3) A guarantee shall state clearly the duration of the guarantee from the date of purchase but different periods may be stated for different components of any goods.
(4) A guarantee shall state clearly the procedure for presenting a claim under the guarantee which procedure shall not be more difficult than ordinary or normal commercial procedure.
(5) A guarantee shall state clearly what the manufacturer or other supplier undertakes to do in relation to the goods and what charges, if any, including the cost of carriage, the buyer must meet in relation to such undertakings.
(6) It shall be an offence for the manufacturer or other supplier of goods to supply in connection with the goods a guarantee which fails to comply with this section.
Annotations:
Modifications (not altering text):
C13
Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996.
Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements.
81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller.
Liability of seller under guarantee.
17.— (1) Where the seller of goods delivers a guarantee to the buyer, irrespective of when or how it is delivered, the seller shall be liable to the buyer for the observance of the terms of the guarantee as if he were the guarantor, unless he expressly indicates the contrary to the buyer at the time of delivery.
(2) Where, however, the seller, being a retailer, gives the buyer his own written undertaking that he will service, repair or otherwise deal with the goods following purchase, it shall be presumed, unless the contrary is proved, that he has not made himself liable to the buyer under the guarantee so delivered.
(3) Sections 16, 18 and 19 shall apply to any such undertaking as they apply to a guarantee.
(4) The liability of a seller to a buyer under this section is without prejudice to the rights conferred on the buyer under section 19.
Annotations:
Modifications (not altering text):
C14
Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996.
Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements.
81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller.
Exclusion of buyer’s rights under guarantee.
18.— (1) Rights under a guarantee shall not in any way exclude or limit the rights of the buyer at common law or pursuant to statute and every provision in a guarantee which imposes obligations on the buyer which are additional to his obligations under the contract shall be void.
(2) A provision in a guarantee which purports to make the guarantor or any person acting on his behalf the sole authority to decide whether goods are defective or whether the buyer is otherwise entitled to present a claim shall be void.
Annotations:
Modifications (not altering text):
C15
Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996.
Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements.
81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller.
Right of action under guarantee.
19.— (1) The buyer of goods may maintain an action against a manufacturer or other supplier who fails to observe any of the terms of the guarantee as if that manufacturer or supplier had sold the goods to the buyer and had committed a breach of warranty, and the court may order the manufacturer or supplier to take such action as may be necessary to observe the terms of the guarantee, or to pay damages to the buyer. In this subsection, buyer” includes all persons who acquire title to the goods within the duration of the guarantee and, where goods are imported, “ manufacturer” includes the importer.
(2) In any case in which a guarantor is liable to an owner in damages, the court may at its discretion and on such terms as the court may deem just afford the guarantor the opportunity of performing these obligations under the guarantee to the satisfaction of the court within a time to be limited by the court.
Annotations:
Modifications (not altering text):
C16
Application of Act extended (13.05.1996) by Consumer Credit Act 1995 (24/1995), s. 81, S.I. No. 121 of 1996.
Application of sections 12 and 15 to 19 of Act of 1980 to hire-purchase agreements.
81.—Where goods are let under a hire-purchase agreement, section 12 (which relates to warranties for spare parts and servicing) of the Act of 1980 and sections 15 to 19 (which relate to guarantees and undertakings) of the Act of 1980 shall have effect as if a contract for the sale of goods were a hire-purchase agreement, the buyer were the hirer and the person by whom the antecedent negotiations were conducted were the seller.
Remedy for breach of warranty.
53.— (1) Subject to subsection (2), where there is a breach of warranty by the seller, or where the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods, but he may—
( a) set up against the seller the breach of warranty in diminution or extinction of the price, or
( b) maintain an action against the seller for damages for the breach of warranty.
(2) Where—
( a) the buyer deals as consumer and there is a breach of a condition by the seller which, but for this subsection, the buyer would be compelled to treat as a breach of warranty, and
( b) the buyer, promptly upon discovering the breach, makes a request to the seller that he either remedy the breach or replace any goods which are not in conformity with the condition,
then, if the seller refuses to comply with the request or fails to do so within a reasonable time, the buyer is entitled:
(i) to reject the goods and repudiate the contract, or
(ii) to have the defect constituting the breach remedied elsewhere and to maintain an action against the seller for the cost thereby incurred by him.
(3) The onus of proving that the buyer acted with promptness under subsection (2) shall lie on him.
(4) The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.
(5) In the case of breach of warranty of quality such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.
(6) The fact that the buyer has set up the breach of warranty in diminution or extinction of the price or that the seller has replaced goods or remedied a breach does not of itself prevent the buyer from maintaining an action for the same breach of warranty if he has suffered further damage.
Supplementary
Sale of Goods Act, 1893, section 55.
22.— For section 55 of the Act of 1893 there shall be substituted the section set out in the following Table:
Conflict of laws.
55A.—Where the proper law of a contract of sale of goods would, apart from a term that it should be the law of some other country or a term to the like effect, be the law of Ireland or where any such contract contains a term which purports to substitute, or has the effect of substituting, provisions of the law of some other country for all or any of the provisions of sections 12 to 15 and 55 of this Act, those sections shall, notwithstanding that term but subject to section 61 (6) of this Act, apply to the contract.
International sales.
24.— In section 61 of the Act of 1893 (Savings) there shall be inserted after subsection (5) thereof the following subsection—
“(6) ( a) Nothing in section 55 or 55A of this Act shall prevent the parties to a contract for the international sale of goods from negativing or varying any right, duty or liability which would otherwise arise by implication of law under sections 12 to 15 of this Act.
( b) In this subsection ‘ contract for the international sale of goods’ means a contract of sale of goods made by parties whose places of business (or, if they have none, habitual residences) are in the territories of different States and in the case of which one of the following conditions is satisfied:
(i) the contract involves the sale of goods which are at the time of the conclusion of the contract in the course of carriage or will be carried from the territory of one State to the territory of another; or
(ii) the acts constituting the offer and acceptance have been effected in the territories of different States; or
(iii) delivery of the goods is to be made in the territory of a State other than that within whose territory the acts constituting the offer and the acceptance have been effected.”.
PART V
Misrepresentation
“Contract”.
43.— In this Part “ contract” means a contract of sale of goods, a hire-purchase agreement, an agreement for the letting of goods to which section 38 applies or a contract for the supply of a service.
Removal of certain bars to rescission for innocent misrepresentation.
44.— Where a person has entered into a contract after a misrepresentation has been made to him, and
( a) the misrepresentation has become a term of the contract, or
( b) the contract has been performed,
or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to the provisions of this Part notwithstanding the matters mentioned in paragraphs (a) and (b).
Damages for misrepresentation.
45.— (1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true.
(2) Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed in any proceedings arising out of the contract that the contract ought to be or has been rescinded, the court may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party.
(3) Damages may be awarded against a person under subsection (2) whether or not he is liable to damages under subsection (1), but where he is so liable any award under subsection (2) shall be taken into account in assessing his liability under subsection (1).
Avoidance of certain provisions excluding liability for misrepresentation.
46.— (1) If any agreement (whether made before or after the commencement of this Act) contains a provision which would exclude or restrict—
( a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made, or
( b) any remedy available to another party to the contract by reason of such a misrepresentation,
that provision shall not be enforceable unless it is shown that it is fair and reasonable.
(2) Subsection (1) shall not affect any right to refer a difference to arbitration.
SCHEDULE
Fair and Reasonable Terms
Section 2 (3).
1. In determining for the purposes of section 13, 31, 40 or 46 of this Act or section 55 of the Act of 1893 (inserted by section 22 of this Act) if a term is fair and reasonable the test is that it shall be a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in contemplation of the parties when the contract was made.
2. Regard is to be had in particular to any of the following which appear to be relevant:
( a) The strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;
( b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;
( c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
( d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;
( e) whether any goods involved were manufactured, processed or adapted to the special order of the customer.
3. In this Schedule—
“ contract” includes “ agreement”,
“ term” includes “ agreement” and “ provision”.