43 No contracting out except for business transactions

(1)

Subject to this section and to sections 40, 41, and 43A, the provisions of this Act shall have effect notwithstanding any provision to the contrary in any agreement.

(2)

However, despite subsection (1), parties to an agreement may include a provision in their agreement to the effect that the provisions of this Act will not apply to that agreement, provided that—

(a)

the agreement is in writing; and

(b)

the goods or services are, or (in connection only with the guarantee of acceptable quality in section 7A) the gas or electricity is, supplied and acquired in trade; and

(c)

all parties to the agreement—

(i)

are in trade; and

(ii)

agree to contract out of the provisions of this Act; and

(d)

it is fair and reasonable that the parties are bound by the provision in the agreement.

(2A)

If, in any case, a court is required to decide what is fair and reasonable for the purposes of subsection (2)(d), the court must take account of all the circumstances of the agreement, including—

(a)

the subject matter of the agreement; and

(b)

the value of the goods, services, gas, or electricity (as relevant); and

(c)

the respective bargaining power of the parties, including—

(i)

the extent to which a party was able to negotiate the terms of the agreement; and

(ii)

whether a party was required to either accept or reject the agreement on the terms and conditions presented by another party; and

(d)

whether all or any of the parties received advice from, or were represented by, a lawyer, either at the time of the negotiations leading to the agreement or at any other relevant time.

(3)

Section 197 of the Contract and Commercial Law Act 2017 shall be read subject to the provisions of this section.

(4)

Every supplier and every manufacturer commits an offence against section 13(i) of the Fair Trading Act 1986 who purports to contract out of any provision of this Act other than in accordance with subsection (2) or section 43A.

(5)

Where an agreement of the kind described in subsection (2) excludes any provision of this Act, the benefit of the exclusion shall be deemed to be conferred on any manufacturer of the goods supplied under the agreement, as well as on the supplier of those goods.

(6)

Nothing in subsection (1) shall limit or affect any term in an agreement in writing between a supplier and a consumer to the extent that the term—

(a)

imposes a stricter duty on the supplier than that imposed by this Act; or

(b)

provides a remedy more advantageous to the consumer than the remedies provided by this Act.

(7)

Nothing in subsection (1) prevents a consumer who has a claim under this Act from agreeing to settle or compromise that claim.

Compare: 1971 No 147 s 51

Section 43(1): amended, on 8 July 2003, by section 5(1) of the Consumer Guarantees Amendment Act 2003 (2003 No 33).

Section 43(2): replaced, on 17 June 2014, by section 13 of the Consumer Guarantees Amendment Act 2013 (2013 No 144).

Section 43(2A): inserted, on 17 June 2014, by section 13 of the Consumer Guarantees Amendment Act 2013 (2013 No 144).

Section 43(3): amended, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Section 43(4): amended, on 8 July 2003, by section 5(2) of the Consumer Guarantees Amendment Act 2003 (2003 No 33).