Essay questions in this area are less common but will now tend to focus on:

The differing treatment of exemption clauses and unfair terms in commercial and consumer contracts, the history of the legislation, and an evaluation of the provisions in the CRA 2015

This debate involves evaluating different policy objectives in these different contexts and how the main distinction was previously seen in the differing approaches to the application of the reasonableness requirement in UCTA. Such a debate may involve looking at the differing scope of UCTA and the scope of the previous Regulations, together with the problems of overlap and odd distinctions relating to ‘consumers’ as ‘companies’ for the purposes of protections via UCTA but not the previous Regulations. Difficulties are posed for ‘small businesses’ by a simple B2B or B2C divide where ‘consumers’ are defined as ‘individuals’.

It will be necessary to analyse the position with regard to regulation (and protection) in commercial and consumer contracts to determine whether there is appropriate regulation for the respective contexts and parties under the current legislation. In other words, has the recent legislative reform achieved its objectives? How clear, for example, is the drafting in the CRA 2015? Has it assisted with the ‘core and ancillary terms’ distinction?