Exclusion Clauses

Question 1

Incorporation - Signature

Answer 1

• If you sign a contract your bound by it, whether you read it or not (L’Estrange v Graucob).
• However, this is not the case if D makes an over-riding oral statement which contradicts the contracts terms (Curtis v CC+D)
• Includes electronic signature/tick the box

Question 2

Incorporation - By Reasonable Notice

Answer 2

• If a contract is not written and signed, a clause can be incorporated if reasonable notice is given to the party before entering into the contract (Olley v Marlborough Court Hotel)
• If it’s a ticket, reasonable notice will depend on whether the courts think the ticket is intended to be kept and read (Chapelton v Barry UDC)

Question 3

Incorporation - Prev Course Dealings

Answer 3

• If the parties have dealt on the same terms in the past, knowledge of an exclusion clause can be implied due to a consistent ‘course of dealings’
• Must be sufficiently frequent (Hollier v Rambler Motors)

Question 4

Construction

Answer 4

1. The main purpose rule = an exclusion clause won’t be constructed if it defeats the main purpose of the contract (Glynn v Margetson)
2. The contra proferentem rule = where there is an ambiguity or uncertainty in the meaning or scope of an exclusion clause, it should be interpreted against the person who introduced and is seeking to rely on it (Hollier v Rambler Motors)

Question 5

S2(1) UCTA 1977

Answer 5

Liability cannot be excluded for death and personal injury caused by negligence

Question 6

S3 UCTA 1977

Answer 6

Where one party is subject to another parties standard terms of business, an exclusion clause will only be valid if it’s reasonable

Question 7

S11(5) UCTA 1977

Answer 7

It is for the party who inserts the clause into the contract and seeks to rely on it to show that it is reasonable in all circumstances (Warren v Truprint Ltd)

Question 8

S11(1) Reasonableness UCTA 1977

Answer 8

• The knowledge test - refers to exclusion clauses in general.
• Test is whether the insertion of the term is reasonable in light of what was known to the parties at the time the contract was made (Smith v Eric S Bush)

Question 9

What is the Grey List?

Answer 9

Things that may be considered unfair under Schedule 2 CRA