#CL- exclusion and limitation clauses

Question 1

what is an exclusion clause

Answer 1

parties try to exclude any liability

Question 2

what are limitation clauses

Answer 2

parties try to cap financial liability

Question 3

what are the acts which govern E/L clauses

Answer 3

unfair contract terms act (UCTA) 1977

CRA 2015

Question 4

what are the sections of UCTA 1977

Answer 4

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

Question 5

whos responsibility is it to prove it is unreasonable

Answer 5

Defendant

Question 6

how may D prove it is a reasonable term

Answer 6

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

Question 7

what does the CRA state

Answer 7

s 31- can’t exclude certain goods rights
s 57- can’t exclude certain services rights
s 65-death personal injury

Question 8

what does the CRA contain

Answer 8

contains other excluded items under blacklist as well as items in a grey list which are typically unfair but can be proven otherwise

Question 9

what are judicial controls on exclusion and limitation clauses

Answer 9

parties can include harsh or unfair terms when
signed contract
tick boxes (underline)
made very clear
before agreement made
previous dealings 
document of significance

Question 10

what is contra proferentem

Answer 10

if there is doubt in whether a term should be allowed it goes against the party trying to use it.

Question 11

L’Estrange v Graucob

Answer 11

bound by exclusion clause in contract for cigarette machine even though she had not read it.

Question 12

Curtis v chemical cleaning and dyeing co ltd

Answer 12

cleaners could not rely on exclusion clause because the oral explanation seemed like liability was only excluded for beads and sequins

Question 13

Olley v Marlborough court hotel

Answer 13

the exclusion clause was on wall inside bedroom so they didn’t know of it when the contract was made.

Question 14

Chapelton v Barry Urban District council

Answer 14

it was unreasonable to assume that he would automatically understand ticket. liable for injuries

Question 15

Thompson v London Midland and Scottish railway company

Answer 15

it was common knowledge that railways have contracts, the fact she can’t read doesn’t change legal position

Question 16

McCutheon v David MacBrayne ltd

Answer 16

previous dealings are only relevant if they prove knowledge of the terms of contract

Question 17

transocean drilling uk ltd v providence resources plc

Answer 17

if EC is clear then contra proferentum has no application

Question 18

Warren v Trueprint ltd

Answer 18

it is the responsibility of the person who inserts term to show its reasonableness

Question 19

Smith v Eric Bush (1990)

Answer 19

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.

Question 20

Watford Electronics Ltd v Sanderson CFL ltd

Answer 20

EC was reasonable as they were of similar bargaining power.

Question 21

George Mitchell LTD v Finney Lock seeds

Answer 21

s 11 (4) UCTA - specifically relates to limitation clauses and not exclusion clauses.