Business-business exclusion clauses Flashcards
What are business-business exclusion clauses controlled by?
Unfair Contract Terms Act 1977
Unfair Contract Terms Act 1977
Controls business-business exclusion clauses
S.3
If a party wants to rely on any terms, they must show that they are reasonable in all the circumstances
If a party wants to rely on any terms, they must show that they are reasonable in all the circumstances
S.3
What sections determine what is reasonable?
- S.11(1)
- S.11(2)
- S.11(4)
- S.11(1)
- S.11(2)
- S.11(4)
Sections that determine what is reasonable
S.11(1)
Exclusion clause must be reasonable based on the knowledge of the parties at the time the contract was formed
Exclusion clause must be reasonable based on the knowledge of the parties at the time the contract was formed
S.11(1)
Case that demonstrates S.11(1)
Smith v Eric S Bush 1990
Smith v Eric S Bush 1990
Demonstrates S.11(1)
S.11(2)
Schedule 2 criteria must be considered
Schedule 2 criteria must be considered
S.11(2)
Case that demonstrates S.11(2)
Watford Electronics 2001
Watford Electronics 2001
Demonstrates S.11(2)
Schedule 2 criteria
- Strength of bargaining power
- Inducements to enter the contract
- Knowledge of the exclusion clause
- Whether meeting that condition was practical
- Strength of bargaining power
- Inducements to enter the contract
- Knowledge of the exclusion clause
- Whether meeting that condition was practical
Schedule 2 criteria
Considers how able D was to cover themselves by insurance or other means in the case of any claim. (For limitation clauses only)
S.11(4)
S.11(4)
Considers how able D was to cover themselves by insurance or other means in the case of any claim. (For limitation clauses only)
Case that demonstrates S.11(4)
George Mitchell 1983
George Mitchell 1983
Demonstrates S.11(4)
S.2(1)
cannot exclude liability for death or personal injury caused by negligence
cannot exclude liability for death or personal injury caused by negligence
S.2(1)
cannot exclude the implied terms from the Sale of Goods Act 1979 that they own title to the goods
S.6(1)
S.6(1)
cannot exclude the implied terms from the Sale of Goods Act 1979 that they own title to the goods
Subject to the reasonable test, businesses can exclude liabilty for what?
- carrying out a service with care and skill and completing the service within a set time
- liability for all other express or implied terms
