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How consumer rights law impacts BIFA’s STC


The effect of the Consumer Rights Act 2015 (the Act) on the BIFA Standard Trading Conditions (the BIFA Terms)


The Secretariat was recently approached by a Member concerning a problem that had arisen in relation to a claim by a high net worth individual for damages. The Member was concerned about the displacement of the


BIFA Terms by the Act and how that may affect the value of any claim. The BIFA Terms already go some way to assisting those acting for consumers (those not acting in the course of their business) by drawing customers’ attention to adverse terms relating to indemnification and limitation in terms of time and value of claims, as well as the position on goods insurance and arbitration at the beginning of the terms. However the BIFA Terms are there for the use of all BIFA


Members, not just those who may act for consumers. If you do act for consumers, you need to keep in mind the obligations under the Act. This is because clause 2(B) provides for the terms being overridden by any mandatorily applicable laws that are in conflict with the terms. It is worth mentioning that even if that term did not exist within the BIFA Terms, the same position would apply – in other


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words mandatorily applicable laws (statutes that cannot be overridden) will override private contractual terms if in conflict.


The obligations First, it is worth considering the obligations placed on service providers, including forwarders, to consumers under the Act and what the BIFA Terms provide in regard to the same points, as follows: 1. The services must be performed with reasonable skill and care, and of course that is also required by the BIFA Terms at clause 23. Reasonableness in both cases is a matter of fact.


2. The service must be provided at a reasonable price and a reasonable price is a matter of fact. The BIFA Terms do not deal with the reasonableness of charges and, in terms of businesses, there is freedom of contract in this regard. There is a clause relating to choices of rates according to the degree of liability accepted at clause 16.


3. The services must be provided in a reasonable time if there is no binding agreement as to a fixed time for such provision.


August 2019


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