By Andrew Burrows
Restatement of the English legislations of agreement
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Extra info for A restatement of the English law of contract
A term is transparent if it is expressed in plain and intelligible language and (in the case of a written term) is legible; and a term is prominent if it is brought to the consumer’s attention in such a way that an average consumer would be aware of the term. Where there are proceedings before a court which relate to a term of a consumer contract, the court must consider whether the term is fair even if not raised by the parties unless the court considers that it has insufﬁcient legal and factual material to do so.
This means that special rules applicable only to particular types of contract, whether at common law or, especially, by reason of legislation, will not be covered unless reference to the special rules assists in describing (or avoids a misleading description of) the general law, an obvious example being the terms implied by legislation into a contract for the sale of goods. It is important to emphasise that the general law of contract comprises both common law (that is, judge-made law including equity) and legislation.
5) Rescission is barred where— (a) the claimant has afﬁrmed the contract by unequivocally manifesting an intention to continue with it after knowing of the misrepresentation or non-disclosure or being free of the illegitimate threat, undue inﬂuence or weakness or incapacity; (b) a third party is a bona ﬁde purchaser for value of property transferred under the contract without notice of the factor rendering the contract voidable; (c) restitution by the claimant to the other contracting party of beneﬁts conferred on the claimant by the other contracting party is impossible; or (d) the claimant has delayed too long in seeking rescission so that, unless the rescission is at common law (as for, for example, fraudulent misrepresentation) rather than in equity (as for, for example, nonfraudulent misrepresentation or undue inﬂuence), the doctrine of laches applies (see section 30(7)).