Exclusion Clauses Flashcards
Thornton v Shoe Lane Parking
The more unreasonable the exclusion, the clearer it must be made
L’Estrange v Graucob
Signed documents are incorporated even if not read or understood
Interfoto v Stiletto
Unusual or onerous statements must have special attention drawn to them
Grogan v Robin Meredith
The document must be a contractual one
Curtis v Chemical Cleaning and Dyeing
If oral statements are made about a written exclusion, the verbal statement is the one that stands
Chapelton v Barry UDC
Statements must be clearly present at the time of making the agreement
Parker v SE Railway
Statements on non-contractual documents may be incorporated if the reasonable person would know of them
O’Brien v MGN
Websites must make their terms clear
Hollier v Rambler Motors (is the exemption clause a term)
If two parties don’t have frequent enough contracts to establish a ‘regular course of dealings’, it is unlikely the term will be incorporated
Spurling v Bradshaw
If two parties have frequent enough contracts to establish a ‘regular course of dealings’, it is likely the term will be incorporated
Hollier v Rambler Motors (contra proferentem)
The rule allows judges to ‘give the benefit of the doubt’ to weaker parties to protect them
Transocean Drilling UK v Providence Resources
If the term is clear and freely agreed, the court will probably allow the clause
Consumer Rights Act 2015
Applies to business to consumer contracts
S62 CRA 2015
A term is unfair if it puts the consumer at a disadvantage by significantly limiting their rights, or increasing their obligations, compared to the trader
S65 CRA 2015
An exclusion about death or injury caused by negligence is never fair to exclude
S31 CRA 2015
Exclusions about the implied rights to goods are never fair to exclude
Unfair Contract Terms Act 1977
Applies to business to business/consumer to consumer contracts
S2(1) UCTA 1977
Manufacturers, owners of premises, or suppliers of services can’t exclude liability for causing death or personal injury by negligence
S2(2) UCTA 1977
Manufacturers, owners of premises, or suppliers of services can’t exclude liability for causing property damage by negligence in so far as such clauses are reasonable
S3 UCTA 1977
Parties can exclude liability for breach of contract if the clause is reasonable
S11(1) UCTA 1977
UCTA applies to exclusion clauses in general. The term must have been reasonable based on what was known to the parties at the time of making the contract (Knowledge test)
S11(2) UCTA 1977
UCTA applies specifically to exclusions about the implied terms for goods and services. The guidelines for deciding if this is reasonable are set out in Schedule 2 of UCTA
Schedule 2 UCTA 1977
(a) The relative strength of bargaining power of the two parties to the contract
(b) Whether the customer received any inducement to agree to the term
(c) Whether the buyer knew or should reasonably have known about the term
(d) Whether the goods were made to the special order of the customer
(e) Whether liability is accepted only if certain conditions are complied with
