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Contract Law P3, OCR > Exclusion Clauses > Flashcards

Exclusion Clauses Flashcards

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1
Q

Exclusion Clause def

A

excludes liability of one party for breach of contract

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2
Q

Limitation Clause def

A

sets an upper limit on liability rather than excluding liability

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3
Q

Common Law controls

A
  • main CL control is that the terms must be incorporated into the contract (accept, sign, previous- ticket, clear, harsh)
  • ‘contra proferentem rule’
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4
Q

Thornton v Shoe Lane Parking

A

terms will usually be made available when the contract is made, before acceptance

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5
Q

L’Estrange v Graucob

A

signing a contractual document incorporates terms contained within it even if they have not been read

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6
Q

Kendal v Lilico

A

terms may be incorporated by previous dealing/custom if they are regular dealings

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7
Q

Chapelton v Barry

A

tickets or receipts may incorporate terms if it is r to expect the on the back

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8
Q

Olley v Marlborough Court Hotel

A

terms may be incorporated if clearly on display e.g car park, or clearly reffed to in unsigned document when the contract is made

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9
Q

Interfoto v Stilleto

A

very harsh or unusual terms must have special notice ie made prominent in order to be incorporated

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10
Q

Transocean Drilling v Providence

A

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

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11
Q

statute law- ‘consumer’ contracts

A
  • Consumer Rights Act 2015** (31, 65, 62*) (goods: Q,P,D,RCS. death, fair test)
  • CRA ‘15 (only if clause if incorporated)
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12
Q

statute law- ‘business to business’ contracts

A
  • *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
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13
Q

Section 31 of CRA ‘15

A

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’

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14
Q

Section 65 of CRA ‘15

A

bars any clause excluding liability for death/p injury caused by negligence

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15
Q

Section 62 of CRA ‘15

A

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

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16
Q

Section 2(1) of UCTA ‘77

A

a clause exc. liability for death/pi caused by negligence is void

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17
Q

Section 6&7 of UTCA ‘77

A

a clause exc. imp terms as to q of goods/services is void

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18
Q

Section 2(2) of UTCA ‘77

A

a clause exc. liability for loss other than death/pi will be void unless it passes the r test

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19
Q

Section 3 of UTCA ‘77

A

r test also apps here where 1 p is subject to the other’s standard written terms of business

20
Q

Section 11 of UTCA ‘77

A
  • *‘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)
21
Q

Smith v Eric Bush

A

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)

22
Q

George Mitchell v Finney Lock Seeds

A

3 RT (s11): the availability of insurance for d to deal with a claim

23
Q

Exclusion Checklist

A
  • 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)
24
Q

excludes liability of one party for breach of contract

A

Exclusion Clause def

25
Q

sets an upper limit on liability rather than excluding liability

A

Limitation Clause def

26
Q
  • main CL control is that the terms must be incorporated into the contract (accept, sign, previous- ticket, clear, harsh)
  • ‘contra proferentem rule’
A

Common Law controls

27
Q

terms will usually be made available when the contract is made, before acceptance

A

Thornton v Shoe Lane Parking

28
Q

signing a contractual document incorporates terms contained within it even if they have not been read

A

L’Estrange v Graucob

29
Q

terms may be incorporated by previous dealing/custom if they are regular dealings

A

Kendal v Lilico

30
Q

tickets or receipts may incorporate terms if it is r to expect the on the back

A

Chapelton v Barry

31
Q

terms may be incorporated if clearly on display e.g car park, or clearly reffed to in unsigned document when the contract is made

A

Olley v Marlborough Court Hotel

32
Q

very harsh or unusual terms must have special notice ie made prominent in order to be incorporated

A

Interfoto v Stilleto

33
Q

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

A

Transocean Drilling v Providence

34
Q
  • Consumer Rights Act 2015** (31, 65, 62*) (goods: Q,P,D,RCS. death, fair test)
  • CRA ‘15 (only if clause if incorporated)
A

statute law- ‘consumer’ contracts

35
Q
  • *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
A

statute law- ‘business to business’ contracts

36
Q

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’

A

Section 31 of CRA ‘15

37
Q

bars any clause excluding liability for death/p injury caused by negligence

A

Section 65 of CRA ‘15

38
Q

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

A

Section 62 of CRA ‘15

39
Q

a clause exc. liability for death/pi caused by negligence is void

A

Section 2(1) of UCTA ‘77

40
Q

a clause exc. imp terms as to q of goods/services is void

A

Section 6&7 of UTCA ‘77

41
Q

a clause exc. liability for loss other than death/pi will be void unless it passes the r test

A

Section 2(2) of UTCA ‘77

42
Q

r test also apps here where 1 p is subject to the other’s standard written terms of business

A

Section 3 of UTCA ‘77

43
Q
  • *‘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)
A

Section 11 of UTCA ‘77

44
Q

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)

A

Smith v Eric Bush

45
Q

3 RT (s11): the availability of insurance for d to deal with a claim

A

George Mitchell v Finney Lock Seeds

46
Q
  • 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)
A

Exclusion Checklist

Contract Law P3, OCR (11 decks)

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