The court had to consider whether the clause would be unfair. It observed that a two-stage test applied: (i) was there a significant imbalance and (ii) was this contrary to good faith? As the House of Lords had given “good faith” a procedural and substantive meaning. With regard to the procedural aspect, it was noted that in this case, the relevant term had not been imposed on Boston; rather, the consumer’s agent (the surveyor) had effectively imposed the term on the supplier. There was no absence of fair dealing or good faith in the conclusion of the contract, and consequently, the term could not be unfair.
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