Exclusion Clauses Flashcards
Exclusion Clause def
excludes liability of one party for breach of contract
Limitation Clause def
sets an upper limit on liability rather than excluding liability
Common Law controls
- main CL control is that the terms must be incorporated into the contract (accept, sign, previous- ticket, clear, harsh)
- ‘contra proferentem rule’
Thornton v Shoe Lane Parking
terms will usually be made available when the contract is made, before acceptance
L’Estrange v Graucob
signing a contractual document incorporates terms contained within it even if they have not been read
Kendal v Lilico
terms may be incorporated by previous dealing/custom if they are regular dealings
Chapelton v Barry
tickets or receipts may incorporate terms if it is r to expect the on the back
Olley v Marlborough Court Hotel
terms may be incorporated if clearly on display e.g car park, or clearly reffed to in unsigned document when the contract is made
Interfoto v Stilleto
very harsh or unusual terms must have special notice ie made prominent in order to be incorporated
Transocean Drilling v Providence
2nd common law control: ‘contra proferentem rule’, an ambiguous AND one sided term will be construed against the party that put it in the c
statute law- ‘consumer’ contracts
- Consumer Rights Act 2015** (31, 65, 62*) (goods: Q,P,D,RCS. death, fair test)
- CRA ‘15 (only if clause if incorporated)
statute law- ‘business to business’ contracts
- *Unfair Contract Terms Act 1977** (2(1), 6&7, 2(2), 3, 11) (death, quality, loss, written, r test)
- UCTA ‘77 (only if clause is incorporated), makes some c terms VOID and some c terms subject to a R TEST
Section 31 of CRA ‘15
bars exc/lim clauses concerning consumer’s rights of goods relating to ’s quality’, ‘fit for part p’ & ‘desc’, plus right to services perform w/ ‘r c&s’
Section 65 of CRA ‘15
bars any clause excluding liability for death/p injury caused by negligence
Section 62 of CRA ‘15
sets out fairness test, relates to all terms apart from ‘prominent’ terms relating to price, and prov ‘grey list’ of e.gs of unfair clauses
Section 2(1) of UCTA ‘77
a clause exc. liability for death/pi caused by negligence is void
Section 6&7 of UTCA ‘77
a clause exc. imp terms as to q of goods/services is void
Section 2(2) of UTCA ‘77
a clause exc. liability for loss other than death/pi will be void unless it passes the r test
Section 3 of UTCA ‘77
r test also apps here where 1 p is subject to the other’s standard written terms of business
Section 11 of UTCA ‘77
- *‘R TEST’**- where the p who inserted the clause must show it is r given
- what the p’s knew at time of contract (knowledge) SvEB
- strength of the p’s bargaining positions
- availability of insurance for d to deal with claim (GMvFLS)
Smith v Eric Bush
1 RT (s11): where p who inserted the clause must show it is r given what p’s knew at the time of c (knowledge)
George Mitchell v Finney Lock Seeds
3 RT (s11): the availability of insurance for d to deal with a claim
Exclusion Checklist
- define
- 1CL: >accept (TvSLP), sign c (L’EvG), prev deal (KvL)
- 1CL: ticket (CvB), display (OvMCH), harsh (IvS)
- 2CL: ‘CP rule’ TDvP
- 1SL: CRA ‘15-> s31 SQ, s65 d/pi, s62 fair test
- 2SL: UTCA ‘77-> s2(1) d/pi, s6&7 Q, s2(2) imp loss (RT), s3 exp loss (RT)
- 2SL: r test-> c knowledge (SvEB), bargain power, d insurance (GMvFLS)
excludes liability of one party for breach of contract
Exclusion Clause def
