Control of terms csv Flashcards
What is the main problem with the imbalance of bargaining power in contracts?
The imbalance often leads to the exploitation of weaker parties through onerous terms hidden in fine print or standard form contracts, challenging the classical view of contractual freedom and negotiation.
Which case highlights judicial concern over the unfair use of exemption clauses?
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd and Suisse Atlantique Société d’Armement Maritime SA v Rotterdamsche Kolen Centrale highlight judicial concern over the unfair use of exemption clauses.
How can terms be explicitly incorporated into a contract?
Terms can be incorporated through signature, reasonable notice at or before the contract formation, and by reference to previous dealings and custom.
-Dave Macbrayne Ltd - (Did not have a regular course of dealing = therefore terms were not incorporated).
What does the case L’Estrange v Graucob Ltd demonstrate about contract terms?
It demonstrates that terms are binding if the contract is signed, regardless of whether the terms were read or understood.
How has the judicial approach to interpreting exemption clauses changed over time?
Courts have shifted from using creative interpretation to limit onerous terms towards applying straightforward contractual interpretation principles, aligning with legislative controls.
What are key principles in the interpretation of exemption clauses?
- Contra Proferentem: Ambiguous terms are interpreted against the party that imposed them.
- Clear Words Rule: Exclusion of liability for negligence requires explicit exclusion.
- Distinction between exclusion and limitation of liability.
What role does legislation play in controlling contract terms?
Legislation provides mechanisms to address the imbalance of power and potential exploitation in contractual relationships, with acts like the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015 offering statutory bases for scrutinizing unfair terms.
