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ICAEW Law 02: Termination of contract. > 03. Exclusion clauses, UCTA (1977), CRA (2015) > Flashcards

03. Exclusion clauses, UCTA (1977), CRA (2015) Flashcards

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1
Q

Exclusion clause.

A

A clause within a contract which purports to restrict or exclude liability for breach of contract or negligence.

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2
Q

A clause within a contract which purports to restrict or exclude liability for breach of contract or negligence.

A

Exclusion clause.

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3
Q

Any exclusion clause will be interpreted …

A

strictly against the party seeking to rely on it.

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4
Q

For an exclusion clause to be effective, and therefore enforceable, it must have been …

A

properly incorporated within the contract.

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5
Q

Exclusion clauses are common in … contracts.

A

standard form

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6
Q

Any exclusion clause must be brought to the attention of a party …

A

at the time the contract is agreed.

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7
Q

Any exclusion clause must be an … of the contract.

A

integral part

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8
Q

An exclusion clause presented after a contract has been agreed, including one exlcuding a hotel’s liabliity for the loss of guests’ valuables, …

A

can not be relied upon.

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9
Q

A clause within a contract which purports to restrict or exclude liability for breach of contract or negligence.

A

Exclusion clause.

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10
Q

An exclusion clause presented after a contract has been agreed, including one written on the back of a parking or deckchair ticket, …

A

cannot be relied upon.

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11
Q

The signing of a contract, including one for the supply of a cigarette machine, implies …

A

that the party is aware of and agrees to all of its terms, including any exclusion clause.

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12
Q

If a contract is made without a signed document …

A

then it must be shown that the party was made sufficiently aware of any exclusion clause or other onerous terms.

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13
Q

To be effective, any exclusion clause must cover …

A

the specific breach complained of.

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14
Q

An exclusion clause covering total non performance, including a security employee burning down a film processing factory …

A

can be valid if correctly incorporated into a contract.

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15
Q

Terms within commercial contracts are governed by the …

A

Unfair Contract Terms Act (1977)

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16
Q

The Unfair Contract Terms Act (1977) governs terms in …

A

commercial contracts.

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17
Q

Terms within consumer contracts are governed by the …

A

Consumer Rights Act (2015)

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18
Q

The Consumer Rights Act (2015) governs terms in …

A

consumer contracts.

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19
Q

Terms within contracts between private persons …

A

are not governed by specific legislation.

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20
Q

Private persons may restrict liability …

A

to any degree that they wish.

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21
Q

The main provisions of the UCTA:

TEL for DOPI arising from N are V*

TEL for OLoD arising from N are STATOR

TEL for BoO regarding T are V

A

Terms excluding liability for death or personal injury arising from negligence are void.

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22
Q

The main provisions of the UCTA:

TEL for DOPI arising from N are V

TEL for OLoD arising from N are STATOR*

TEL for BoO regarding T are V

A

Terms excluding liability for other loss or damage arising from negligence are subject to a test of reasonableness.

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23
Q

The main provisions of the UCTA:

TEL for DOPI arising from N are V

TEL for OLoD arising from N are STATOR

TEL for BoO regarding T are V*

A

Terms excluding liability for breach of obligations regarding title are void.

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24
Q

Where the statutory test of reasonableness under the UTCA applies, the court will decide whether the term is …

A

fair and reasonable having regard to all the circumstances.

25
Q

CRA (2015): a term is U* if, contrary to the requirement of GF, it causes a SI in the parties’ RaO under the contract to the DOTC.

A

unfair

26
Q

CRA (2015): a term is U if, contrary to the requirement of GF*, it causes a SI in the parties’ RaO under the contract to the DOTC.

A

good faith

27
Q

CRA (2015): a term is U if, contrary to the requirement of GF, it causes a SI* in the parties’ RaO under the contract to the DOTC.

A

significant imbalance

28
Q

CRA (2015): a term is U if, contrary to the requirement of GF, it causes a SI in the parties’ RaO* under the contract to the DOTC.

A

rights and obligations

29
Q

CRA (2015): a term is U if, contrary to the requirement of GF, it causes a SI in the parties’ RaO under the contract to the DOTC*.

A

detriment of the consumer

30
Q

The CRA requires that terms are set out in … language.

A

plain, intelligible

31
Q

The CRA requires that relevant terms must be …

A

prominent.

32
Q

Unfair contract terms (do / do not) invalidate the whole contract.

A

do not

33
Q

If a term within a consumer contract is open to different meanings, the one most favourable to the … will be the one chosen.

A

consumer

34
Q

If a business engages in an activity which is incidental to its trade, including the purchase of a second hand car, …

A

then it is likely to be deemed a consumer and therefore protected by the Consumer Rights Act (2015).

35
Q

Terms in an exclusion clause, including one regarding ‘new’ Singer cars …

A

will be interpreted strictly against the person intending to rely on them.

36
Q

T/F: the Unfair Contract Terms Act (1977) does not apply to the sale of land.

A

TRUE

37
Q

Under the UCTA, the burden of proof regarding the statutory test of resonableness falls on …

A

the party relying on the exclusion clause.

38
Q

The UCTA primarily regulates …

A

exclusion clauses in business to business contracts.

39
Q

T/F: the Unfair Contract Terms Act (1977) does not apply to insurance contracts.

A

TRUE

40
Q

T/F: the UCTA (1977) applies to sales between private individuals.

A

FALSE

41
Q

T/F: the UCTA (1977) applies to sales between private individuals and businesses.

A

FALSE

these are covered by the CRA (2015)

42
Q

UCTA (1977): P* I L B L A I M S

A

doesn’t apply to PATENTS or intellectual property

43
Q

UCTA (1977): P I* L B L A I M S

A

doesn’t apply to INSURANCE

44
Q

UCTA (1977): P I L* B L A I M S

A

doesn’t apply to LAND transfers

45
Q

UCTA (1977): P I L B* L A I M S

A

BARGAINING power of the parties equal?

46
Q

UCTA (1977): P I L B L* A I M S

A

Is LIMITATION of Liability fair and reasonable having regard to all the circumstances which were, or which ought to have been known to the parties WHEN THE CONTRACT WAS MADE?

47
Q

UCTA (1977): P I L B L A* I M S

A

Was the party made sufficiently AWARE of the exclusion clause?

48
Q

UCTA (1977): P I L B L A I* M S

A

offering of INDUCEMENTS / ability to INSURE

49
Q

UCTA (1977): P I L B L A I M* S

A

any MISREPRESENTATION?

50
Q

UCTA (1977): P I L B L A I M S*

A

a SPECIAL ORDER or from STOCK?

51
Q

T/F: the Consumer Rights Act (2015) governs consumer notices.

A

TRUE

e.g. signs in car parks

52
Q

CRA (2015): L* I E R R R R R

A

doesn’t apply to LAND transfers

53
Q

CRA (2015): L I* E R R R R R

A

doesn’t apply to INSURANCE contracts

54
Q

CRA (2015): L I E* R R R R R

A

doesn’t apply to EMPLOYMENT contracts

55
Q

CRA (2015): L I E R* R R R R

A

Cant restrict enforcement of legal RIGHTS.

56
Q

CRA (2015): L I E R R* R R R

A

Must be READABLE, legible and prominent.

57
Q

CRA (2015): L I E R R R* R R

A

READ ambiguity pro the consumer.

58
Q

CRA (2015): L I E R R R R* R

A

RELIANCE by the consumer is possible.

59
Q

CRA (2015): L I E R R R R R*

A

REMAINDER of contract valid, excluding the unfair term.

ICAEW Law 02: Termination of contract. (5 decks)

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