In a world of online sign-ups, automated checkouts, and fast-moving transactions, it’s increasingly common for important contractual terms to be tucked away in hyperlinked documents or embedded in lengthy terms and conditions.
But what happens when you’re held to a term you didn’t see or weren’t clearly told about?
The Legal Test: Fair Notice and Incorporation
Under English law, a contractual term is only binding if it has been properly incorporated. For this to happen, the term must be reasonably brought to the other party’s attention before or at the time of agreement. Courts take a particularly strict view when the term is onerous or unusual. For example, a steep cancellation charge, automatic renewal, or narrow time limit. In such cases, mere inclusion in standard terms or a hyperlink is rarely enough.
The principle was famously confirmed in Interfoto Picture Library v Stiletto [1989]: if a party wishes to rely on a burdensome term, they must do more to highlight it. This requirement applies just as much in digital contracting today.
Consumer Protections Go Further
For consumers, additional protection comes from the Consumer Rights Act 2015 and the Digital Markets, Competition and Consumers Act 2024 (DMCCA). For instance, a subscription services who states a right (e.g. “you can cancel”) but omits crucial limitations (e.g. “within 24 hours and only by mail”) may be guilty of a misleading omission under Section 227 DMCCA. Such terms may be deemed unenforceable, especially where the consumer relied on the incomplete information.
What Can You Do If Caught by a Hidden Term?
- Act promptly: If you’ve been hit with an unexpected fee or penalty, respond in writing and state clearly that the term was never disclosed or explained.
- Gather evidence: Look for emails, screenshots, or messages showing what was (or wasn’t) said at the time.
- Raise legal grounds: Mention lack of incorporation, unfair terms, or misleading omissions, depending on context.
- Seek advice: Where significant sums or repeat conduct are involved, consider formal legal advice or contacting Trading Standards.
In sum, not all small print is binding. Businesses that hide key terms behind links or vague wording may find themselves exposed.
At Lisa’s Law, we regularly assist clients who have been caught out by hidden or unfair contract terms, particularly in housing, consumer, and online service agreements. Whether you’re disputing a cancellation charge, facing enforcement of unclear terms, or seeking to understand your rights before signing, our team can provide clear, practical advice. If you believe you’ve been misled or pressured into an agreement, we are here to help you challenge it with confidence.
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