Exclusion Clauses Flashcards
Exclusion clause definition
Clause that attempts to nullify liability where one party claims not to be responsible for what happens within the contract.
Regulation for exclusion clauses under common law
- Has the clause been incorporated in the contract?
- Does the clause cover the alleged breach?
Ways of incorporating clause in the contract:
By signature
By reasonable notice
By previous course of dealings
By signature meaning
If a document is signed at the time of making the contract, its content becomes terms of that contract, regardless of whether they have been read and understood.
By reasonable notice meaning
A party seeking to rely on an unfair term must demonstrate that they gave reasonable notice.
By previous course of dealings meaning
If the parties have dealt with each other before then the term may be incorporated through these dealings even where the term was not brough to the attention of the other party on this occasion.
Case for incorporation through signature
L’Estrange v Graucob
Case for incorporation through reasonable notice
Olley v Marlborough Court Hotel
Case for incorporation through previous dealings
Hollier v Rambler Motors
Contra proferentem rule
Used to answer if the clause covers the alleged breach. Where there is any ambiguity in the wording of the clause, the courts will interpret the clause against the party seeking to use it.
Case for the contra proferentem rule
Andrew Bros Ltd v Singer Cars
Statutory control, and when it is used
Statutory controls are brought up to check if the exclusion clause does not conflict with implied terms.
Enforces Unfair Contract Terms 1977 and Consumer Rights Act 2015
What does the Unfair Contract Terms Act 1977 cover?
Liability for negligence (s.2)
Liability for non-performance (s.3)
Unfair Contract Terms s.2
Liability for death or personal injury resulting from negligence cannot be excluded. Any clause which attempts to do this will be rendered ineffective.
Unfair Contract Terms s.3
Restrictions on the ability to:
- Exclude/restrict liability for breach of contract.
- Provide a different performance to that reasonably expected/no performance at all.
Invokes s.11
