Exemption Clauses

Question 1

Photo Production v Securicor Transport

Answer 1

An exemption clause is a clause that excludes or modifies an obligation

Question 2

L’Estrange v Graucob

Answer 2

Signature binds, unless fraudulent or misrepresentaiton

Question 3

Curtis v Chemical Cleaning

Answer 3

Signature will not bind where exemption clause has been misrepresented to the signor

Question 4

Grogan v Robin Meredith Plant Hire

Answer 4

Document must have contractual effect

Question 5

Saunders v Anglia Building Society

Answer 5

Non est factum - cases of blindness, illiteracy (known) or senility, so they don’t know what they are signing
Claimant had broken her reading glasses so signed contract without reading it - non est factum rejected

Question 6

Parker v South Eastern Railways

Answer 6

Proferens must have taken reasonable steps to bring the term to the other party’s notice - indicated on the front of the ticket that there was a limitation clause on the reverse

Question 7

Thompson v London, Midland & Scottish Railways

Answer 7

Incorporation by reference - must be notice of where to find

Claimant’s illiteracy not allowed since ticket stated to look for terms and conditions on platform

Question 8

Harvey v Ventilatorenfabrik

Answer 8

Contract was written in German, proferens knew claimant couldn’t read German - clause not incorporated

Question 9

Henderson v Stevenson

Answer 9

Where a document does not have clear words on the fact of it directing attention to an exemption clause on the reverse, unlikely that such a clause will be incorporated

Question 10

Sugar v London, Midland & Scottish Railway

Answer 10

Clause was rendered illegible by a date stamp - not incorporated

Question 11

Olley v Malborough Court Hotel

Answer 11

Any clause will not amount to a binding term if it is only communicated after the contract is made

Question 12

Thornton v Shoe Lane Parking

Answer 12

Exemption clause must be brought to claimant’s attention before contracting
Ticket production = offer
Taking the ticket = acceptance
If the term is onerous then more notice required (exclusion of liability for personal injury)

Question 13

Chemical Transport v Exnor Craggs

Answer 13

Signature will incorporate most onerous clauses unless in extreme circumstances (not a clause you’d expect int that type of contract)

Question 14

Chapelton v Barry UDC

Answer 14

Document must have contractual effect - given raffle ticket (wouldn’t expect to be binding contractual document)

Question 15

McCutcheon v MacBrayne

Answer 15

Course of regular and consistent dealings on same term will incorporate exclusion clause

Question 16

Hollier v Rambler

Answer 16

3/4 times in 5 years - not consistent or regular

Question 17

Harry Kendall & Sons v William Lillico

Answer 17

3-4 times a month for 3 years - regular and consistent

Question 18

Petrotrade Inc v Texaco

Answer 18

5 times over 13 months - regular and consistent

Question 19

George Mitchell v FInney Lock Seeds

Answer 19

Clause will be interpreted on the natural and ordinary meaning of its words

Question 20

Andrew Brothers v Singer Cars

Answer 20

If the clause is ambiguous in any way, the court will interpret contra proferentem

Question 21

Houghton v Trafalgar Insurance

Answer 21

Contra proferentem interpretation of the word ‘capacity’

Question 22

Canada Steamship

Answer 22

Test for excluding negligence

1) Does the clause specifically mention negligence or use a close synonym?
2) if no - is it wide enough to cover negligence?
3) is the clause able to exclude other liabilities (breach of contract) as well as negligence? - if yes, will not include negligence

Question 23

Monarch Airlines v London Luton Airport

Answer 23

‘Any act or omission, neglect or default’ = synonym for negligence

Question 24

Alderslade v Hendon Laundry

Answer 24

Took in handkerchiefs to be laundered and consequently lost them - only explanation was negligence (stolen or lost) - exclusion clause allowed (not liable for loss or damage howsoever caused)