Exclusion and Limitation Clauses Flashcards
What can express terms be in a contract + case ?
Express terms can be either written in to the contract, or stated verbally when the contract is made, and concern matters such as price ( CURTIS v CHEMICAL CLEANING ).
What is the main common law control + cases ?
The main common law control is that the terms must be incorporated and generally terms should be made available before the contract is made ( CHAPELTON v BARRY , THORNTON v SHOE LANE PARKING ).
What must be given special notice + cases ?
Harsh terms must be special notice ( INTERFOTO v STILETTO , BLU SKY v BE CARING LTD ).
What may incorporate terms + case ?
Tickets or receipts may incorporate terms if it is reasonable to expect them on the back ( THOMPSON v LMS RAILWAY ) .
What can signing a contractual document do ?
Signing a contractual document incorporates terms even if they have not been read.
What must be signed to incorporate terms and what else can suffice + cases ?
It must be a contractual document ( GROGAN v ROBIN MEREDITH, L’ESTRANGE v GRAUCOB ). An automated signature at the footer of an email will ( NEOCLEOUS v REES ).
How can clauses also be implied through + cases ?
Clauses may also be implied through the course of dealings ( HILLAS v ARCOS ), if its use is regular and consistent, even if it comes after acceptance ( KENDAL v LILICO, MCCUTCHEON v MACBRYAN ).
What is the second common law control ?
The second common law control is the “contra preferentem rule” , meaning “interpretation against the draftsman”.
What does the “contra preferentem rule” mean in contract law + case ?
An ambiguous and one-sided term that will be construed against the party that put it in the contract ( TRANSOCEAN DRILLING v PROVIDENCE ).
What about for consumer contracts + case ?
It is stated in S69 of the Consumer Rights Act 2015, it prevents terms being given a wide meaning ( WHITE v JOHN WARWICK ) .
What special rules apply if the term seeks to exclude liability for negligence + case ?
The special rules for exclusion of negligence liability under common law ( SHELL v P&O ROADTANKERS ), where it was stated that phrases such as “loss whatsoever” or “however occasioned” won’t cover an exclusion clause for negligence.
What does S.31 of the Consumer Rights Act (CRA) 2015 bar ?
It bars exclusion and limitation clauses concerning the consumer’s rights of goods relating to “satisfactory quality (S.9)”, being “fit for a particular purpose (S.10)” and “matching a description (S.11)”, plus the consumer’s right relating to services to be performed with “reasonable care and skill (S.49)”.
What does S.65 bar ?
S.65 bars any clause excluding liability for death or personal injury caused by negligence.
What does S.62 set out + case ?
It sets out a fairness test ( PARKINGEYE v BEAVIS ), under S.62(4) a term is unfair if it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
What does S.64 state + case ?
It states that a clause cannot be assessed for fairness under S.62 if it is transparent and specifies the main subject matter of the contract ( OFFICE OF FAIR TRADING v ABBEY NATIONAL).
What does Schedule 2 of the CRA 2015 contain ?
It contains a list of terms which are to be regarded as unfair, for example, the trader requiring a disproportionate amount of compensation if the consumer cancels the contract.
What does the Unfair Contract Terms Act ( UCTA ) 1977 relate to and do to some contract terms ?
The UCTA 1977 relates to ‘business to business’ contracts and makes some contract terms VOID and some contracts subject to a REASONABLE TEST.
What does S.2(1) state ?
Under S.2(1) a clause excluding liability for death or personal injury caused by negligence is void.
What does S.6 and S.7 state ?
Under S.6 and 7 , a clause excluding liability for loss other than death or personal injury will be void unless it passes the reasonableness test.
What does the reasonableness test apply ?
It applies where one party is subject to the other’s standard written terms of business, under S.3.
What does S.11 set out + case ?
It sets out a test of ‘reasonableness’, (LAST BUS v DAWSON GROUP) where the party who inserted the clause must show that it is reasonable given what the parties knew at time of contract ( SMITH v ERIC BUSH ), the strength of the parties’ bargaining positions and availability of insurance for D to deal with a claim ( GEORGE MITCHELL v FINNEY LOCK SEEDS ).
