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Know your BIFA Standard Trading Conditions – clause 2
CLAUSE 2 2(A) Subject to sub-paragraph (B) below, all and any activities of the Company in the course of business, whether gratuitous or not, are undertaken subject to these conditions. (B) If any legislation, to include regulations and directives, is compulsorily applicable to any business undertaken, these conditions shall, as regards such business, be read as subject to such legislation, and nothing in these conditions shall be construed as a surrender by the Company of any of its rights or immunities or as an increase of any of its responsibilities or liabilities under such legislation, and if any part of these conditions be repugnant to such legislation to any extent, such part shall as regards such business be overridden to that extent and no further. Clause 2 (A) should not need further explanation as it clearly states the BIFA Member undertakes all work he does for his customer subject to the STC. Clause 2 (B) Clause 2 (B) is a very important clause and it includes the following two elements or limbs: • The BIFA STC can be overridden by compulsory legislation. • Where such compulsory legislation favours the BIFA Member, more so than the BIFA STC, then there is no surrender of such more favourable rights or immunities. Continuing our examination of the BIFA Standard Trading Conditions (STC) we look this month at clause 2, which is split into two limbs. The explanation of clause 2 (B) will be split over this issue and the next issue of BIFAlink due to space constraints
derived from judge-made decisions and even some of those decisions made in the 17th and 18th centuries are still valid in the 21st century under English law. Contract terms Common law can be modified or overridden by contract terms and that happens when the BIFA STC are incorporated into contracts. Restraint on modifying common law by standard trading conditions is imposed by the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contract Regulations 1999 SI 1999/2083, because if standard trading conditions contravene that legislation, they are ineffective. However, both common law and contract law are overridden by statute law enacted by a British Act of Parliament (‘Act’), by an Order or
Regulations enforced by Statutory Instrument (‘SI’), by powers given in an Act, or possibly foreign law. A Company cannot opt out of or disregard compulsory legislation. However, Clause 2(B) stresses that such legislation applies only to the extent that it is repugnant to the BIFA STC and that the company is not surrendering rights or immunities under such legislation. For example, with regard to the time limit for the notification of a claim, an international convention incorporated into English law may be more favourable to the BIFA Member than the BIFA STC. Next month we will continue to examine Clause 2 (B) and look at the international conventions for the carriage of goods that concern a BIFA Member.
The general rule is that common law is overridden by contract law. Common law is
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May 2022
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