exclusion clauses

Question 1

what is an exclusion clause

Answer 1

aims to exclude the liability of one party to a contract as they wish to protect themselves

Question 2

limitation clause definition

Answer 2

aims to limit liability

Question 3

common law

Answer 3

• clause must be incorporated into the contract to be relied upon- cannot be used to defeat the purpose of the contract and give the party with a stronger bargaining power an advantage
  (can be incorporation or construction)

Question 4

incorporation

Answer 4

• look to see whether or not an exclusion clause is part of the contract
• an exclusion clause will be considered part of a contract if it has been BROUGHT TO THE ATTENTION of the other party BEFORE the contract is made

Question 5

WRITTEN incorporation into contract case

Answer 5

L’estrange v Graucob

• bound by term if they have signed, doesn’t apply to things signed after contract formed eg delivery
• purchase cigarette vending machine for CAFE and they signed an order in which the exclusion clause with a statement on order form in small print

Question 6

WRITTEN incorporation into contract case 2

Answer 6

Curtis v Chemical Cleaning

-oral misrepresentation can destroy the validity of the clause

Question 7

UNWRITTEN INCORPORATION

Answer 7

• Olley v Marlborough Court Hotel

- contract already been made before the claimants saw notice so it’s not formed part of the contract

Question 8

Construction case

Answer 8

Hollier v Rambler Motors

-to rely on previous dealings for an exclusion clause they must be REGULAR and SUFFICIENT in number

Question 9

contra preferentum meaning in construction

Answer 9

clause cannot be used if there is uncertainty or ambiguity, we favour the weaker party

Question 10

examples from before contract and after contract

Answer 10

before- order form (INCORPORATED INTO CONTRACT)

after- receipts, invoice, delivery note etc (NOT INCORPORATED)