Exclusion Clauses Flashcards
Introduction?
Exclusion clauses, parties can limit their liability through putting exclusion clauses in contacts.
1) Whether the agreement was signed?
L’Estrange v Graucob - Where a party has signed an agreement they are bound by that agreement.
Curtis v Chemical - If oral assurances are given that contradict the term signed then the exclusion clause will not apply,
2) Whether any notice with the term is incorporated into the contract?
Olley v Malbrough Hotel - The exclusion clause must be made clear at the time of the contract not after it.
3) Harsh Terms?
Rooney v Bournemouth - In a business contract it may be sufficient to make reference to terms contained elsewhere.
Interfoto v Stiletto - Particularly harsh or unusual terms must be brought to the other side’s attention before contract is signed.
4) What the term is written on?
Chapelton v Barry Council - The term will only be incorporated into the contract if it is contained within a document of contractual significance, receipts are not documents of contractual significance.
Parker v SE Railway - Tickets may incorporate terms, they are contractual documents.
5) Whether the Exclusion Clause is incorporated as a result of prior dealings between the parties?
Kendal v William Lillico - If parties have had previous dealings then the terms of the contract will be held, so the exclusion cause will be valid if it has been included in previous contracts.
5) Whether the Exclusion Clause is incorporated as a result of prior dealings between the parties? Exceptions
Consumer Contracts - Hollier v Rambler Motors - The exclusion clause will not be included in consumer contracts.
Contra Proferentum - Consumer Rights Act 2015 S69 - If the exclusion clause in a consumer contract has more than one meaning, then the meaning is used that favours the consumer, does not apply for business contracts.
Statutory approach definition?
Statutory approach to limiting exclusion clauses - two acts of parliament limit exclusion clauses, they are automatically declared not valid if they fit into any.
Unfair Contract terms act 1977 Introduction?
It is used for business to business contracts and section 3 imposes a test of reasonableness on the exclusion clause.
Unfair Contract terms act 1977, Part 1 of the test?
S11(1) - Is the exclusion clause reasonable considering what was made known to the parties at the time the contract was made. Smith v Bush - The less knowledge of one party, the less likely toe exclusion clause will be reasonable.
Unfair Contract terms act 1977, Part 2 of the test?
S11(2) - Covers exclusion clauses relating to the sale of goods act 1979 and takes into account, the bargaining strength of each party, the prior knowledge of the term, any specialist goods being produced (more specialized the goods - less likely exclusion clause will be reasonable). - Watford v Sanderson.
Unfair Contract terms act 1977 Part 3?
S11(4) - Exclusion clauses to limit a financial responsibility will not be allowed if the D could have taken out insurance - George Mitchell v Finney Seeds.
The Consumer Rights Act 2015? Voids exclusion clauses for services?
S31(s9) - Goods to be of satisfactory quality.
S31(s10) - Goods fit for particular purpose.
S31(s11) - Goods to be as described.
S31(s14) - Goods to match a model as seen or examined.
The Consumer Rights Act 2015? Voids exclusion clauses for services?
S57(s49) - Service to be performed with reasonable care and skill.
S57(s50) - Information about the trader/service is binding.
S57(s51) - Reasonable price.
S57(s52) - Reasonable time.
General Fairness of terms?
S62 - There is a requirement for all terms (including exclusion clauses) to be fair. Terms relating to the price are not subject to the unfairness test so long as they are transparent.
S65 - Prohibits exclusion or restriction for liability for death or serious injury resulting from negligence.
