Ms Clare McNamara:

The blacklist contains the terms that can never appear in a contract because they are automatically unfair and if a contract contains one of these terms, an offence will be committed under the Act. If there is a clause in a contract that excludes or limits the liability of the trader for death or personal injury arising from an act or omission of the trader or requires the consumer to pay for goods or digital content that have not been supplied, these would be examples of blacklist terms that should never appear in a contract.

The grey list contains terms that might be presumed unfair and that will form part of a schedule to the Act. They could be considered questionable if they appeared in a contract. An example of this would be a term in a contract that has the object or the effect of making an agreement binding on a consumer whereby the provision of services by the trader is subject to a condition where realisation depends on the trader’s will alone. This would put more obligation on the consumer than the trader providing the service. Another example would be a term that has the object or effect of requiring a consumer, who decides not to conclude or perform the contract, to pay the trader a disproportionately high sum of money in compensation for services that have not been supplied. That would be considered or presumed an unfair term. They are a couple of examples of each.