Exclusion Clauses

Question 1

Pros of exclusion clauses (Freedom of contract) and evaluate

Answer 1

Upholds freedom of contract-allowed to contract on any terms

EVAL:Terms often inserted by powerful parties and smaller parties do not understand or unaware. Hence why common law/statutory controls developed. These involvements are criticised tho.

Question 2

What did Sales of Goods Act 1893 highlight and eval

Answer 2

Highlights importance of FoC. Courts will try not to imply terms and decide on a case to case basis instead to avoid setting precedent that affect future business.

EVAL:Justification for implied terms protection of consumers who are often weaker due to asymmetric information, seen in CRA 2015, achieves justice for weaker party

Question 3

Common law control evaluation

Answer 3

Developed rules of incorporation (signature, reasonable notice, previous dealing)

Eval:protects unwary in most cases, but not those who don’t read carefully as can be inserted in via documents or reasonable notice.

Common law also suggests law should include a duty to act ‘in accordance with good faith and fair dealing’, and such duty should never be excluded

Question 4

Statutory controls on exclusion clauses before 1970’s

Answer 4

Judicial controls-incorporation and interpretation initially, then added doctrine of fundamental breach

Question 5

Doctrine of fundamental breach

Answer 5

No exclusion clause, however unambigious, could protect a party from liability for a serious of fundamental breach.

Question 6

UCTA 1977 S11

Answer 6

Exclusion clause only if reasonable-fair

Question 7

UCTA and UTCCR

Answer 7

Language is hard to understand. Even specialist lawyers struggle to interpret

Overlap, inconsistencies and differing terminology create confusion

Question 8

Definition of clauses

Answer 8

Problematic