Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1.

1. An agreement between the parties to the contract that a claim for damages had to be made within a short peremptory period and within a shorter period that that stipulated under ordinary law is not unlawful in itself.
2. However, in any such case there must be an unequivocal proposal, acceptance and agreement as to any such derogatory clause.
Note: this decision was given in 1995 well before the coming into force of the applicable provisions on unfair terms under the Consumer Affairs Act (which provisions came into force in 2001). This notwithstanding the Court on the basis of the general principles applicable under Civil Law decided that the said term was unfair. Furthermore under Article 81 of the Consumer Affairs Act which relates to the sale of goods to consumers contractual clauses are not binding on the consumer if directly or indirectly they restrict the rights that the consumer enjoys under Part VIII of the Consumer Affairs Act which part includes a provision whereby the consumer is entitled to exercise certain remedies if the goods delivered are not in conformity with the agreement within two years from the delivery.

This case related to a clause contained in the invoices of the seller which stipulated that in the delivery of material, no claims would be accepted after three days from the consignment of the delivery note. The trader (plaintiff) requested payment for the delivery of material to the defendant who in turn claimed that the material was defective. The plaintiff argued that because a claim had not been filed in the stipulated three days, the defendant could not allege that the product was defective.

The court considered that a limitation of the period within which a claim could be filed was not in itself illegal. However, the court held it was obvious that in such cases there must be an unequivocal offer, acceptance and agreement as to any such clause which stipulated a shorter period for notifying defects.

The court observed that in this case the exemption clause was merely stamped in very small print on each invoice. At times the invoices themselves were illegible. Furthermore, the plaintiff had confirmed that there was never any individual negotiation on the clause in question. For these reasons the court held that there was no clear agreement on the contents of the clause and that therefore the defendant could resort to the argument that the product was defective despite the fact that the stipulated period for notifying defects according to the clause had been exceeded.

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