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Fair Trading Act 1986

Enforcement and remedies - Declaration of unfair contract terms

46K: Terms that may not be declared to be unfair contract terms

You could also call this:

“Rules about which contract terms can't be called unfair”

You can’t declare certain terms in a standard form consumer contract or a standard form small trade contract to be unfair. These terms include:

The ones that explain what the contract is mainly about.

The ones that set the price you need to pay up front.

The ones that the law says must be there or allows to be there.

When we talk about the ‘upfront price’, we mean the money you agree to pay in the contract. This includes money you might have to pay if something specific happens or doesn’t happen. But this only counts as the upfront price if it’s clearly written in the contract so you can understand it.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM6410740.

Topics:
Money and consumer rights > Consumer protection
Business > Fair trading
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46J: Standard form contracts, or

“Rules about contracts that are mostly written by one side”

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46L: When term in consumer contract or small trade contract is unfair, or

“When a contract term is not fair to one side”

Part 5 Enforcement and remedies
Declaration of unfair contract terms

46KTerms that may not be declared to be unfair contract terms

  1. A court may not declare a term in a standard form consumer contract or standard form small trade contract to be an unfair contract term to the extent that the term—

  2. defines the main subject matter of the contract; or
    1. sets the upfront price payable under the contract; or
      1. is a term required or expressly permitted by any enactment.

        1. In this section, upfront price means the consideration (including any consideration that is contingent upon the occurrence or non-occurrence of a particular event) payable under the contract, but only to the extent that the consideration is set out in a term that is transparent.

        Notes
        • Section 46K: inserted, on , by section 36 of the Fair Trading Amendment Act 2013 (2013 No 143).
        • Section 46K(1): amended, on , by section 17 of the Fair Trading Amendment Act 2021 (2021 No 32).