Towards a fairer trading system for micro and small businesses post-Brexit? Comparative aspects with other common law systems

This chapter explores the position that the English legislature and courts would have on the issue of imposing unfair contract terms on Micro and Small Businesses (MSBs) in the post-Brexit era. The chapter looks into the extent that current applicable law and developments in English contract law offer protections for contractual trading with MSBs. In the presence of current legal gaps with regards to such protections that often lead to abuse by larger corporations there might be some solutions available in the current law to deal with the invalidation of unfair contract terms in Business to Business (B2B) transactions involving MSBs, however these still do not deal with the issue in its entirety and are also met with limitations. Given the uncertain developments on this matter after Brexit the chapter considers a brief comparative analysis with other common law jurisdictions on the issue as they might influence possible future reforms. The comparative analysis consists of examining the protections available on imposing unfair contract terms on small businesses in the Australian and the US legal systems. This chapter thereby analyses what possible solutions can be raised in dealing with this pressing issue after Brexit by considering these comparative results.

This is the accepted, pre-copyedit version of a chapter published in The Future of the Commercial Contract in Scholarship and Law Reform: European and Comparative Perspectives. The final authenticated version is available online at: https://doi.org/10.1007/978-3-319-95969-6_12