Exclusion And Limitation Clauses Flashcards
What are exclusion clauses
Are terms within a contract which exclude liability for breach of contract which exclude liability for-breach of contract e.g car park will not be liable for any damage to vehicle
What are limitation clauses?
Terms within a contract set an upper liability for breach of contract
E.g liable for any damage during 9 - 5 pm and not after
due to freedom and contract courts will generally accept what?
will generally accept that parties can agree to any terms they like, do take into account that 1 party can generally be stronger than one another during negotiations E.g when entering a mobile phone contract, an individual has little opportunity to negotiate terms with business as business is a stronger party.
when a limitation clause or exclusion clause present within a contract, courts will consider what?
courts will consider following when deciding whether to enforce contract or not;
1) whether agreement was signed
2) whether term was incorporated in contract
3) wether term was incorporated as a result of previous dealings between parties
explain whether agreement was signed?
a signature will not incorporate terms if what is signed is not a contractual document (grogan v Robin Meredith)
whether a party has signed an agreement/contract they are bound by it.
what was held in L’Estrange v Graucob
she was bound by contract as she signed it, no term could be implied
whats the rule around query?
however if a query is made before signing or if theres a request for clarification on meaning of clause, oral statement can override the written clause.
what was held in Curtis v chemical cleaning and dyeing
the claim was successful due to oral assurance made from D to C
explain, whether any notice with term in its incorporated into contract?
involves corporations notices or forms into contract - usually this is about unwritten contracts
‘notice’ only be incorporated into contract if at the time the contract was made, the unsigned notice was brought the attention of the person suffering exclusion clause
what was held in Thornton shoe lane parking
link to notice
was decided on appeal that even though there was a contract, terms which we were stated inside a car park weren’t incorporated in original contract.
what happens if a term is harsh?
if a term is harsh this must be brought to the attention of the other party (Kaye v nu skin uk) otherwise courts will not accept it.
terms cannot be incorporated into contract into contract after acceptance unless?
terms cannot be incorporated into contract after acceptance, unless;
there is a new contract which varies the original contract,
or
if its specified in the original contract that there can be a variation in the terms
what was held in Olley v Marlborough court hotel
clause wasn’t incorporated into contact as C’s unaware of clause when they formed contract
tickets may incorporate terms if its?
ticket may incorporate terms if its reasonable to expect that take the back of the ticket will be checked for terms (Parker v se railway)
BUT if its NOT reasonable for a party to expect terms on the back, won’t be incorporated into contract
what was held in chappleton v Barry urban district council.
the council couldn’t rely on this clause as the reasonable person would’ve disregarded the ticket as a receipt and wouldn’t have read the back
explain previous dealing between parties
terms can be incorporated into a contract if the parties have past dealings with each other these dealings are consistent
though the courts are reluctant to incorporated terms into a contract
what was held in McCutcheon v David MacBrayne
this term wasn’t incorporated into contract dealings between parties weren’t consisted so it wouldn’t be assumed clause was present
what is the effect of exclusion clause on 3rd parties to the contract
privity of contract prevents a 3rd party relying on terms of a contract, this was demonstrated in (scruttons v midland silicones) where c was unable to sue for his injuries as we wasn’t party to contract.
contract act 1999 means that the 3rd parties can now rely on an exclusion as long as other requirements of the act are met
what is the contra proferentem rule
this rule only applies when an exclusion clause is unclear, rule prevents terms being given a wide meaning, when a are ambiguous, the court will decide if D can rely on the term
what was held in White v John Warwick
CoA held that ambiguous wording out the exclusion clause didn’t protect them from a claim in a contract law, but they were still liable in negligence
what happens there is doubt the meaning of a term in contract?
when theres doubt about the meaning of a term in a contract, words must be interpreted in line with how the person who wrote the contract intended them.
in TRANSOCEAN UK LTD V PROVIDENCE RESOUCRES LTD - was decided that the principle applied when the term is ambiguous and 1 sided.
