Exclusion And Limitation - Common Law Evaluation

Question 1

Positive for exclusion clauses

Answer 1

-Fair, ppl should be able to take responsibility for own contracts
-Should be free to agree any term they want
-Freedom of contract, courts shouldn’t interfere

Question 2

Negative for exclusion clauses

Answer 2

-Not fair on the person who can’t claim damages.
-Weaker party can’t negotiate, no choice but to accept.
-Terms imposed by stronger party
-Implied terms should be able to be excluded as protect the weaker party

Question 3

Negative for signature rule and case to use with it

Answer 3

-Harsh as even if don’t read to contract, still agree to everything in there when sign it
-Not many people read whole contract, everyone who signs at risk of agreeing to exclusion clause
-L’estrange v Graucob not fair for seller to include harsh term that the machine didn’t have to work
-Now they wouldn’t be able to exclude implied term

Question 4

Positive for signature rule exceptions and cases to use

Answer 4

-Exception that signature won’t count if misled or lied to fair as reasonable to expect person to tell you truth and they may lie just to get you to agree (Curtis v Chemical cleaning co)
-Exception that any harsh terms need the person to take greater measures to bring it to attention of party fair as most people don’t read contracts now, need more protection and stops people taking advantage and hiding horrible terms (Interfoto v Stiletto)
-Exceptions are clear about what can’t be signature
-But subjective what a harsh term is

Question 5

Positive for the notice rule and explanation of case

Answer 5

-Fair as shouldn’t be bound to contract before seeing terms and conditions. Olley v Marlborough court hotel, not fair for the contract to be binding when they could never have read the terms before agreeing to the contract.

Question 6

Negatives for notices

Answer 6

-Uncertainty about when the rule applies when exclusion is on a ticket. Thompson: train ticket, contractual document so was incorp, Chapelton ticket seen as more of a receipt and was given after paid so not incorp. No consistency if notices on tickets are incorp.
-Thompson unfair as she was illiterate and judged against standard of normal person

Question 7

Positive for previous course of dealing

Answer 7

-Fair to agree term like this as may have been dealing together for years and fair to say that they don’t need to sign a contract but the exclusions still apply. Don’t have to sign document every time as have trust

Question 8

Negative for previous course of dealing and case explain

Answer 8

-Unfair as doesn’t respect freedom of contract which is that each contract new and different
-Assumes they have already been told about the exclusion clause which might not have been despite dealing regularly
-Hard to know when contract is consistent enough as in McCutcheon v MacBrayne using ferry often not consistent enough
-Subjective and no specific number of times before contract consistent

Question 9

Positive of contra rule

Answer 9

-Makes sense for a term to only be valid if clear
-Party may make deliberately unclear and vague to get the other party to just sign and not try and understand
-Fair as stronger party enforces the terms so protects weaker.
-Houghton - fair as insurance company didn’t distinguish between objects and people when ‘load’ so did have to pay out

Question 10

Negative for contra rule and case explanation

Answer 10

-Doesn’t always apply
-Transocean drilling v Providence stated should only be used if term of contract is one sided and ambiguous and not if the words are generally unclear