Contract - terms: exclusion and limitiation clauses by common law Flashcards
What are exclusion clauses?
Terms within a contract which exclude liability for breach of contract
What are limitation clauses?
Terms within a contract which set an upper limit on liability for breach of contract
What is some AO3 for exclusion and limitation clauses?
Clear distinction between ‘limitation’ and ‘exclusion’, clarity in law for understanding
Promotes certainty, upholds ROL
Allows business to manipulate consumers
What are common law controls?
Whether agreement was signed
Whether term was incorporated in contract
Whether term was incorporated as a result of previous dealing between parties
What is whether the agreement was signed?
Signature won’t incorporate terms if it’s not a contractual document
Where a party has signed agreement, they are bound by it
What happened in L’Estrange v Gracoub?
Vending machine didn’t work, when she signed contract, it included exclusion clause so no term could be implied
What is the rule on verbal agreeements?
Verbal agreements overrule written contract
What is some AO3 for whether agreement was signed?
Language used implied terms isn’t accessible for lay people’s understanding, may read it and not understand it
Unfair advantage to trader by allowing them to exclude liability and leaver her with a broken machine
In cases, parties could claim they haven’t read agreement to get remedy
What happened in Curtis v Chemical Cleaning?
Oral assurance made that exclusion to damage to wedding dress only included beads and sequins so when it was stained, able to claim
What is some AO3 for oral assurances?
Doesn’t protect those who don’t read doc before signing, it should because businesses should be responsible to explain anything they won’t be liable for explicitly to a consumer. Majority sign contracts without reading as they’re too long
No, they should’t protect as should be up to person to check what they are signing
Promotes freedom of contract as parties pick and choose which terms
But, difficult to prove what was said
What is whether any notice with term is incorporated into contract?
Incorporating notices or forms into the contract - usually about unwritten contracts
Notice only incorporated if at the time the contract was made, the unsigned notice was brought to attention of person suffering exclusion clause
What happened in Thornton v Shoe Lane Parking?
Terms stated inside car park were not incorporated in original contract
What happened if term is harsh if incorported terms?
Must be brough to attention of other party, otherwise courts won’t incorporate it
When will terms be incorporated into contract after acceptance?
New contract which varies the original contract
If specified in original contract that there can be a variation in terms
What happened in Olley v Marlborough Court Hotel?
Terms not incorpated into contract as couple unaware of clause when they formed contract at check in
