exclusion clauses Flashcards
What is an exclusion clause?
- a clause that limits liability for a breach of contract.
What is a courts role in an exclusion clause?
- The courts allow the parties to agree to any terms they like under the contract of freedom, however, if one party has more power the courts will find a way to limit the effectiveness
Thornton v Shoelane Parking
exclusion clause was not part of the contract when the agreement was made so it was not effective
When will courts accept an exclusion clause and what case goes with this?
- Whether the agreement is signed - by signing you accept all the terms
- L’Estrange v Graucob
L’Estrange v Graucob
if the exclusion clause is a written agreement that the party has signed then they have accepted the terms and the exclusion clause as part of the contract
Curtis v Chemical Cleaning
the effect of an oral statement, it becomes whatever the term is
How can an exclusion clause be incorporated into the contract?
the person signing it must be aware of it
Olley v Marlborough
CASE FACTS - EXAMPLE
hotel claimed they were not liable due to an exclusion clause, the agreement was made at the reception but the exclusion clause was in the bedroom. This was not valid because he wasn’t aware at the time of the agreement
Hollier v Rambler Motors
because he had used the garage 3-4 times it wasn’t frequent enough so the exclusion clause wasn’t part of the contract.
Prior dealings
The Contra Proferentem Rule
Where there is doubt about the meaning of a term in a contract, the words will be construed against the person who wrote it
Transocean Drilling v Providence Resources
there were complicated terms in the contract but, in this case it was a sophisticated agreement so it was allowed to be complicated and each party had equal bargaining power.
McCutcheon v David MacBrayne
example case of the contra proderentem rule, it was unclear so the contract was used against the company
What are the three statutory controls?
- consumer rights act 2015
- excluding liability for implied terms
- cannot exclude liability for death or personal injury resulting in negligence
What are the two restrictions of terms?
- the fairness test (consumer rights act)
- the grey list
What section of the consumer rights act defines unfair terms.
Section 62
What are unfair terms?
“ as those of which who put the consumer at a disadvantage by limiting the consumers rights on disproportionately increasing their obligations “
What is the grey list?
a list of terms that are considered to be unfair
