#CL- exclusion and limitation clauses Flashcards
what is an exclusion clause
parties try to exclude any liability
what are limitation clauses
parties try to cap financial liability
what are the acts which govern E/L clauses
unfair contract terms act (UCTA) 1977
CRA 2015
what are the sections of UCTA 1977
s 2 (1) - death/ PI through negligence invalid s 2 (2)- other losses caused by negligence unless reasonable s 6 (1)- ownership rights under SOGA
whos responsibility is it to prove it is unreasonable
Defendant
how may D prove it is a reasonable term
if they have knowledge of the term
looks at whether or not it is trying to exclude a right under SSGA or SOGA
limitation clauses must be reasonable
what does the CRA state
s 31- can’t exclude certain goods rights
s 57- can’t exclude certain services rights
s 65-death personal injury
what does the CRA contain
contains other excluded items under blacklist as well as items in a grey list which are typically unfair but can be proven otherwise
what are judicial controls on exclusion and limitation clauses
parties can include harsh or unfair terms when signed contract tick boxes (underline) made very clear before agreement made previous dealings document of significance
what is contra proferentem
if there is doubt in whether a term should be allowed it goes against the party trying to use it.
L’Estrange v Graucob
bound by exclusion clause in contract for cigarette machine even though she had not read it.
Curtis v chemical cleaning and dyeing co ltd
cleaners could not rely on exclusion clause because the oral explanation seemed like liability was only excluded for beads and sequins
Olley v Marlborough court hotel
the exclusion clause was on wall inside bedroom so they didn’t know of it when the contract was made.
Chapelton v Barry Urban District council
it was unreasonable to assume that he would automatically understand ticket. liable for injuries
Thompson v London Midland and Scottish railway company
it was common knowledge that railways have contracts, the fact she can’t read doesn’t change legal position
McCutheon v David MacBrayne ltd
previous dealings are only relevant if they prove knowledge of the terms of contract
transocean drilling uk ltd v providence resources plc
if EC is clear then contra proferentum has no application
Warren v Trueprint ltd
it is the responsibility of the person who inserts term to show its reasonableness
Smith v Eric Bush (1990)
the test whether the insertion of the term in the contract is reasonable in the light of what the parties knew when the contract was made.
Watford Electronics Ltd v Sanderson CFL ltd
EC was reasonable as they were of similar bargaining power.
George Mitchell LTD v Finney Lock seeds
s 11 (4) UCTA - specifically relates to limitation clauses and not exclusion clauses.
