Exclusion clauses:

Question 1

What is an exclusion cause ?

Answer 1

A term in a contract that prevents one party being liable for a breach in the contract i.e. vehicles left at at own risk etc

Question 2

Go into depth about exclusion clauses:

Answer 2

A company may try to limit liability by attempting to restrict the value of a claim to the purchase price of the goods OR
exclude any claim for a defect to 14 days from the date of contract
Many contracts attempt to exclude the rights of third parties act
they can seem unfair as one party is in a better position than the other
the courts therefore have to come up with ways to limit exclusion causes
e.g. insurance
The whole contract will be considered when interpreting the exclusion clause combined with the reasonable person test

Question 3

Common law controls on exclusion clauses:

Answer 3

The court will have to consider whether the clause is a term of the contract, they do this by considering three areas.
1) Whether the agreement is signed
2) where any notice with the term in it is incorporated in the contract
3) whether the term is incorporated as a result of the previous dealings

Question 4

1) Whether the agreement is signed:

Answer 4

If a party has signed a written agreement, it is presumed that they are bound by that agreement.
If the exclusion clause was therefore in that agreement, and you signed it, then it would be included

Question 5

L’Estrange v Graucob - key case

Answer 5

Agreement is signed
Mrs L’Estrange bought a cigarette vending machine from the defendant for her cafe. She signed a contract including a clause which excluded all implied conditions and warranties; the machine didn’t work properly and L’Estrange relied on the implied term of fit for purpose. However, she couldn’t rely on this because she had signed the contract with the exclusion clause, even though she hadn’t read that part of the contract

If one parties raises a query regarding the exclusion clause and in response to this, the defendants misrepresents the clause, which induces the claimant to sign the contract, then the term won;t apply.

Question 6

Curtis v Chemical Cleaning and Dyeing Co.

Answer 6

Mrs Curtis took her wedding dress to be cleaned and was asking to sign a document that exempted the cleaners from liability for any damage ‘howsoever arising’. Before signing, she asked what exactly she was signing and they stated that it excluded liability just for sequins and beads. When it was returned, it had a large stain on it. They couldn’t rely on the signed exclusion clause because they had verbally misrepresented this

Question 7

2) Whether any Notice with the Term in it is Incorporated in the Contract by Reasonable Notice

Answer 7

car park
This typically involves unwritten contracts - subjective
Incorporation of the term can only apply if it was brought to the attention before the contract was made
you cannot introduce new terms to a contract after acceptance, unless it allows for variation i.e. phone prices