Common law controls of exclusion clauses Flashcards
What is an exclusion clause?
Terms which exclude liability for a breach
What is a limitation clause?
Terms which set a limit for liability
What are the sections of exclusion clauses?
Signature
By notice
Term incorporated by prior dealings
What is the case for signature?
Graucob- bound by contract as she signed it so no term implied
What is the rule for signature?
If a query is made before signing, an oral statement can override the written clause
What is the case for overriding the signature?
Curtis v Chemical Cleaning
What is the rule for incorporation by notice?
You can give a notice to the other party about the existence of the exclusion clause
What is the case for incorporation by notice?
Thornton v Shoe lane parking
What is the rule for notices if the term is harsh?
Must be brought to the attention of the other party- Kaye v Nu skin UK
When can terms not be incorporated into the contract?
After acceptance unless there is a new contract which changes the original contract or if it is stated in the contract that there can be a variation of the terms
What is the case for terms not being incorporated into the contract by notice?
Olley v Marlborough Court Hotel
When can tickets be incorporate terms?
If it is reasonable to expect the vac of the ticket will be checked for terms - Chappelton v Barry Urban District
Terms incorporated if reasonable steps taken- Thompson v London
What is previous dealings?
Terms incorporated if parties have past dealings with each other as long as they are consistent- McCutcheon v David MacBrayne
What is the Contra Proferentem rule?
Applies if an exclusion clause is unclear (wide meanings and ambiguous)
Where there is doubt about the meaning of a term and the words must be interpreted against the person who is trying to rely and use the term
What is the case for the Contra Proferentem rule?
White v John Warwick
