Exclusion clauses Flashcards
define exclusion clauses
exceptions/ limitations put in place by law & courts to protect consumer/ balance interests of parties
list the 4 elements of exclusion clauses
1) common law - incorporation of the clause
2) common law - construction of the clause
3) statute - The Unfair Contract Terms Act 1977
4) statute - CRA 2015
list 3 types of incorporation of exclusion clauses
a) by signature
b) by reasonable notice
c) by a previous course of dealing
explain incorporation of clause by signature with a case
where the parties sign the contract, caveat emptor applies (they are bound by the terms) - L’ Estrange v Graucob
what is the exception to the signature rule with case
Curtis v Chemical Cleaning Company - where verbal statement of exclusion differs from written one, verbal version prevails
under time of notice, in the absence of a signature clause, exclusions are only valid if… with case
reasonable notice of its terms are given BEFORE entering the contract - Olley v Marlborough Court Hotel
under form of notice, what case states that the clause must be contained in a document where party would expect to find the clause
Chapelton v Barry UDC
the more complex the clause, the greater effort should be made to do what..
bring it to other parties attention
what case states that if a course of dealing exists between 2 parties who regularly make the same contract + terms are consistent - new ones need to be made clear
McCutcheon v McBrayne
what is Contra Proferentum + case
if any ambiguity in the exclusion clause, cannot rely on it. Needs to be made clear - Hollie v Rambler Motors
explain the effect of exclusion clauses on third parties to the contract + case
Privity Rule means terms are only binding on parties themselves (with exceptions) - so exclusion clauses may not offer protection to parties other than those part of the contract - Cosgrove v Horsefell
much of the difficulty in cases such as Cosgrove v Horsefell may be removed by what act
Contracts (Rights of Third Parties) Act 1999
who does The Unfair Contract Terms Act 1977 look to protect
consumers
what is an example of the UCTA making some exemption clauses invalid and therefore not enforceable
s2(1) - cannot exclude liability for death or personal injury
the UCTA says some exemption clauses are only valid if they are what
reasonable
what section of the UCTA states exclusion clause seeking to limit other loss must satisfy reasonableness test
s2(2)
what section of the UCTA imposes the reasonableness test
s3
the reasonableness test is not defined, but s11(1) states what about it
the term must be fair & reasonable to ‘have been included in the circumstances with reasonable knowledge or contemplation’ (knowledge test)
what case states that ‘reasonableness’ must be proved by the person relying on the clause
Warren v Trueprint Ltd.
what section of the CRA 2015 prohibits a term excluding or limiting the availability for the following in respects to the Sale of Goods - + state ‘following’ (5)
s.31:
- goods to be of satisfactory quality
- fit for purpose
- as described
- match a model seen
- installation as part of conformity of the goods with the contract
what section of the CRA 2015 prohibits a term excluding or limiting liability for the supply of services? + list 4
s.57:
- service to be performed with reasonable care & skill
- information about serve to be binding
- reasonable price
- reasonable time
what section of the CRA 2015 prohibits exclusion or restriction of liability for death or personal injury resulting from negligence
s.65
