Exclusion Clauses

Question 1

Suisse Atlantique v NV Rotterdamsche [1967] Facts

Answer 1

• SA chartered he Silvretta to R for 2 years
• Agreed that any delays in loading and unloading, R would pay SA $1,000 a day
• Lengthy delays occurred
• R was allowed to continue to use the ship for the remainder of the term
• At conclusion of contract, SA sued for damages
• SA claimed a sum in excess of what was agreed to
• SA argued that he breach was a fundamental breach, contract should be repudiated
• Held:
o Agreement was not an exemption clause
o I was an ‘agreed damages’ provision
o R could limit their damages to $1,000 as they agreed

Question 2

Suisse Atlantique v NV Rotterdamsche [1967] Principle

Answer 2

o Agreement was not an exemption clause
o I was an ‘agreed damages’ provision
o R could limit their damages to $1,000 as they agreed

• validity of exclusion clause should be ok for fundamental breaches

Question 3

Photo Production v Securicor [1980] Facts

Answer 3

• S provided security guards to look after a plant
• Smoked and started a fire, no intention (negligence)
• Burnt down part of the plant
• Who should bear the costs?
• Agreement between the parties had an exclusion clause
• “Under no circumstances should S be responsible for injuries and damages by employees”
o excluded employee negligence
• Held:
o Exclusion clause stands
o Sophisticated parties
o Freedom of contract
o S not liable for actions of employees

Question 4

Photo Production v Securicor [1980] Principle

Answer 4

Unfair Terms

o Exclusion clause stands
o Sophisticated parties
o Freedom of contract

• HoL said there is no common law power to simply strike down unreasonable clauses
• Unfair contract terms act 1977
• It is legislated, not the court business
• EU got involved after the Act
• EU made a directive regulating unfair contract terms
o UTCCR
• They overlap
• They apply in different situations

• if clearly covers liability of fundamental breach, the exclusion clause will cover it

Question 5

George Mitchell v Finney Lock Seeds [1983] Facts

Answer 5

• G was a farmer
• Purchased 30 lb of cabbage seed for F for £192
• G planted the seeds and spent man hours on the crops
• Seeds only produced a small green leaf plant not fit for human consumption
• Exclusion clause that limited liability to the price of the seeds
• G lost £60k + interest on the defective seeds
• Held:
o Clause was unreasonable
o Buyer would not have been aware of the fault
o Seller would have known about the fault

Question 6

George Mitchell v Finney Lock Seeds [1983] Principle

Answer 6

Unfair terms

o Clause was unreasonable
o Buyer would not have been aware of the fault
o Seller would have known about the fault

Question 7

Phillips v Hyland [1987] Facts

Answer 7

• P hired an excavator from Hampstead Plant Hire
• Under contract, P had to have a driver provided by Hampstead
• Contract also contained a clause stating that the driver became a servant for P, negating Hampstead’s liability arising from negligence from the driver
• Exclusion clause
• The driver (H), crashed the excavator into a building owned by P, causing extensive damage
• Held:
o Exclusion clause was unreasonable because:
1. Contract was entered into at short notice
2. P was given little opportunity to review the term
3. P was forced into a take it or leave it situation, and had no choice but to accept the driver
4. Little opportunity to arrange own insurance cover
5. P had no choice in the selection of the driver or to assess his qualifications

Question 8

Phillips v Hyland [1987] Principle

Answer 8

o Exclusion clause was unreasonable because:

1. Contract was entered into at short notice
2. P was given little opportunity to review the term
3. P was forced into a take it or leave it situation, and had no choice but to accept the driver
4. Little opportunity to arrange own insurance cover
5. P had no choice in the selection of the driver or to assess his qualifications

Question 9

Director General of Fair Trading v First National Bank (2001) Facts

Answer 9

• Concerns Regulation 6 of the UTCCR 1999
• Determined If a clause, providing interest at the contractually agreed price, was payable after a judgement
• Held:
o It did not represent a core term under Regulation 6, even though it was an agreed term representing price remuneration
o Lord Steyn:
• Must be given restrictive interpretation
• Otherwise, “It would be a gaping hole in the system if such clauses were not subject to the fairness requirement.”

o Lord Bingham on “good faith”
• “It looks to good standards of commercial morality and practice.”
• “Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position”

Question 10

Director General of Fair Trading v First National Bank (2001) Principle

Answer 10

UTCCR 1999
Regulation 6

• Determined If a clause, providing interest at the contractually agreed price, was payable after a judgement
• Held:
o It did not represent a core term under Regulation 6, even though it was an agreed term representing price remuneration
o Lord Steyn:
• Must be given restrictive interpretation
• Otherwise, “It would be a gaping hole in the system if such clauses were not subject to the fairness requirement.”

• Lord Bingham
o In order to be fair, definition of core terms should be narrow
o Reason that this result occurred was because of relevant legislation
o Must look at good faith and whether a significant imbalance was caused
o Unfair
• Open dealing
• Fair intelligible
• Process and substance of determining unfairness
• No positive action required, just be open and clear
• Substance is important

Question 11

Office of Fair Trading v Abbey National plc & others (2009) Facts

Answer 11

o Most important banking case in banking law (recent)
o 2 issues
• Were the charges capable of being penalties?
• In past, said no
• Were the charges fair under UTCCR?
• Were they included in the universe in terms that the UTCCR dealt with?
o Core terms?
• Yes
• Related to the price
• Unreviewable
• Adequacy of the price means the adequacy of “all” the prices
• Did not have to determine if the charges were fair
• Fell outside scope of UTCCR

Question 12

Office of Fair Trading v Abbey National plc & others (2009) Principle

Answer 12

UTCCR

o Core terms?
• Yes
• Related to the price
• Unreviewable
• Adequacy of the price means the adequacy of “all” the prices
• Did not have to determine if the charges were fair
• Fell outside scope of UTCCR

Question 13

Karsales (Harrow Ltd) v Wallis [1956] Facts

Answer 13

o Sale of a car
o Term was no condition or warranty that the vehicle was road worthy
o When actually delivered, it was not road worthy
o Argued exclusion clause made no liability
o Held:
• Rejected
• Exclusion clause is too broad
• Cannot use as a cover for own misconduct
• Not an excuse

Question 14

Karsales (Harrow Ltd) v Wallis [1956] Principle

Answer 14

• Exclusion clause is too broad
• Cannot use as a cover for own misconduct
• Not an excuse

Question 15

Spurling v Bradshaw [1956] Principle

Answer 15

Unusual Terms

• Special attention is necessary

Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.” (Denning)

Question 16

Evans v Merzario [1976] Facts

Answer 16

• Goods were suppose to be shipped below deck, they were shipped above deck
• Clause to exclude liability in this instance
• Held:
• Rejected
• Cannot apply
• Exclusion clause Cannot cover a promise of this kind

Question 17

Evans v Merzario [1976] Principle

Answer 17

Oral Warranty can override exclusion clauses

I feel driven to the conclusion that none of these exemption clauses can be applied, because one has to treat the promise that no container would be shipped on deck as overriding any question of exempting condition

Question 18

Excluding Negligence Pre-UCTA 1977?

Answer 18

Canada Steamship Lines Ltd v R [1952]

3 principles:

o 1. If the clause contains language which expressly exempts the person in whose favour it is made (the ‘proferens’) from the consequences of his negligence, effect must be given to the clause.
• If clear that it covers the loss, we give it effect

o 2. If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens. Any doubt must be resolved against the party seeking to rely on the clause (contra proferentem rule)

o (3) if the words used are wide enough to cover such negligence, the court must then consider whether liability may be based on some ground other than that of negligence. The other ground must not be so unusual or remote that the proferens cannot be supposed to have desired protection against it. However, subject to this remoteness, the existence of another possible liability other than that of negligence is fatal to the proferens even if the words used are prima facie wide enough to cover negligence.
• If anything other than negligence to hang liability on, the court says we should do that

Question 19

Excluding Negligence Post-UCTA

Answer 19

o Even if the clause covers negligence, it will not cover it

o Unfair Contract Terms Act 1977, s. 2

Hollier v. Rambler Motors (AMC) Ltd [1972]

Question 20

Canada Steamship Lines Ltd v R [1952]

3 Principles?

Answer 20

o 1. If the clause contains language which expressly exempts the person in whose favour it is made (the ‘proferens’) from the consequences of his negligence, effect must be given to the clause.
• If clear that it covers the loss, we give it effect

o 2. If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens. Any doubt must be resolved against the party seeking to rely on the clause (contra proferentem rule)

o (3) if the words used are wide enough to cover such negligence, the court must then consider whether liability may be based on some ground other than that of negligence. The other ground must not be so unusual or remote that the proferens cannot be supposed to have desired protection against it. However, subject to this remoteness, the existence of another possible liability other than that of negligence is fatal to the proferens even if the words used are prima facie wide enough to cover negligence.
• If anything other than negligence to hang liability on, the court says we should do that

Question 21

Ailsa Craig v Malvern Facts

Answer 21

• Involved security company
• Enter contract where S was to provide security for ships
• As result from negligence, A’s ship sank
• Limitation clause for S, nothing over a £1000 for one claim
• Held:
• Should find natural meaning of the phrase
• Look for clear meaning
• Not as harsh as exclusion clauses

Question 22

Ailsa Craig v Malvern Principle

Answer 22

Limitation clause

• Should find natural meaning of the phrase
• Look for clear meaning
• Not as harsh as exclusion clauses

Question 23

Darlington Furniture v Delco Australian Facts

Answer 23

• If the clause clearly covers the loss, it will be allowed
• Contract between broker and investor
• Broker caused investor to lose a lot of money
• Limitation clause
• Limited liability to investor
• Freedom to enter contract with broker
• Must show that the loss or damage is within the scope of the clause

Question 24

Darlington Furniture v Delco Australian Principle

Answer 24

Limitation clause

• Must show that the loss or damage is within the scope of the clause

Question 25

Harbutts Plasticine Ltd v Wayne Tank & Pump Co. Ltd (1970) Facts

Answer 25

?

Question 26

Harbutts Plasticine Ltd v Wayne Tank & Pump Co. Ltd (1970) Principle

Answer 26

• Fundamental breach and breach of a fundamental term

• No liability for exclusion clauses if it a fundamental breach
Lord Denning

Question 27

Overbrook Estates v Glencombe Facts

Answer 27

• A bid for O’s property
• Certain exclusion clauses in the contract
• Property was consider a slum, part of slum clearing program at the time
• Said it was not part of the program
• Reality, the program had interest in the property
• G said he won’t pay O
• It was a misrepresentation
• Exclusion clause covered misrepresentation
• Was this reasonable?
• Held:
• It was reasonable
• Sale had to go ahead

Question 28

Overbrook Estates v Glencombe Principle

Answer 28

s. 3 Misrep Act 1967

s. 11 & Schedule 2 UCTA 1977

Question 29

Cremdene Properties v Nash [1977] Facts

Answer 29

• purchase of property
• C wanted to buy from N
• What parts had planning permission?
• Had permission to convert into offices
• Reality, much less permission
• Misrepresentation
• Exclusion clause
• Unreasonable?
• Held:
• No
• Sale had to go ahead

Question 30

Cremdene Properties v Nash [1977] Principle

Answer 30

s. 3 Misrep Act 1967

s. 11 & Schedule 2 UCTA 1977

Question 31

IFE Fund SA v Goldman Sachs International [2006] EWHC 2887, confirmed [2007] Facts

Answer 31

• I was an investment fund
• Claimed the G was misrepresenting things and breached a duty of care
• G were under writers of a credit facility
• G gave an information memorandum to company listing details about transactions I
• I read it and bought some of the bonds
• In between when the memorandum was produce and when I invested, G received info that pointed to the idea that the memo was incorrect
• I argued G misrepresentation, did not correct info
• There was a continuing representation
• Necessary to update info
• Held:
• No misrepresentation
• Memo was limited to the date created, not after
• Duty of care?
o No
• UCTA
o I said the terms that tried to exclude liability needed to satisfy the reasonableness requirement
o Judge had to decide whether the language was suppose to exclude liability
o Judge found on facts that there was no misrep
• Judges are reluctant to find an exclusion or limitation clause if there is a possibility of another way to interpret the clause

Question 32

IFE Fund SA v Goldman Sachs International [2006] EWHC 2887, confirmed [2007] Principle

Answer 32

UCTA 1977

• Judges are reluctant to find an exclusion or limitation clause if there is a possibility of another way to interpret the clause

Question 33

Springwell Navigation Corp. v. JP Morgan Chase Bank (formerly Chase Manhattan Bank) [2010] Facts

Answer 33

• S was an investment vehicle for rich person
• 1998, its portfolio was concentrated in Russia
• GKOs were issued by Russia
• 1998, Russian financial crises
• GKOs feel in value
• J advised S about the GKOs
• S argued that J misrep
• Questions was had the relevant provisions amount to a misrep under s.3 of the misrep act
• Held:
• S was a sophisticated investor
• Terms met the requirement of reasonableness
• Must have known that the GKOs could go down as well as up
• It takes a lot for the court to conclude that the terms are unreasonable between 2 sophisticated parties

Question 34

Springwell Navigation Corp. v. JP Morgan Chase Bank (formerly Chase Manhattan Bank) [2010] Principle

Answer 34

UCTA 1977

• It takes a lot for the court to conclude that the terms are unreasonable between 2 sophisticated parties

Question 35

Thompson v Lohan [1987] Facts

Answer 35

• L hired an excavator to Hurdess
• Contract said the driver was employed by H
• Driver caused T’s death
• T sued L for damages, was successful
• L tried to recover the damages from Hurdess (H)
• Driver employed by H or L?
• Argued s.8, driver was employed by H
• Argued that liability should be transferred to H
• S. 2(1), cant exclude liability for death or personal injury
• Only applies to people
• Can liability be exclude or transferred?
• Held:
o Cannot exclude or limit
o Can transfer liability to another party

Question 36

Thompson v Lohan [1987] Principle

Answer 36

UCTA 1977

• S. 2(1), cant exclude liability for death or personal injury

Question 37

Stevenson v Rogers [1999] Facts

Answer 37

• R was a fisherman, sold boat to S
• Was he in the business of selling fishing boats?
• HE was a fisherman
• Held:
o Yes
o Reluctant to allow person to avoid UCTA

Question 38

Stevenson v Rogers [1999] Principle

Answer 38

s. 6 UCTA 1977

o Reluctant to allow person to avoid UCTA

Question 39

R&B Customs Brokers v United Dominions Trust [1988] Facts

Answer 39

•	R was a shipping broker
•	2 person company
•	bought second hand car from U
•	car roof leaked
•	clause in contract, conditions were excluded
•	violate s.6 of UCTA?
•	2 questions?
o	Dealing as business or consumer?
•	Business, could exclude (s.6)
•	Court said they were consumer in this case
•	Can be no exclusion of liability

Question 40

R&B Customs Brokers v United Dominions Trust [1988] Principle

Answer 40

s. 6 UCTA 1977

o Dealing as business or consumer?
• Business, could exclude (s.6)
• Court said they were consumer in this case
• Can be no exclusion of liability

If consumer, would not be able to use UTTCR

Question 41

Schedule 2 Reasonableness Factors? (4)

Answer 41

o a) Strength of the bargaining position of the parties;
• Sophisticated v non sophisticated?
o b) Whether the customer received an inducement;
• ex: low price= stricter terms
• more likely to be reasonable
o c) Whether the customer knew or should have known of the term
o d) Whether the term excludes or restricts liability if some condition is not complied with

o These factors are not exhaustive.

Question 42

Watford Electronics v Sanderson [2001] Facts

Answer 42

• S provided mail order processing system
• System did not meet W’s requirements
• W terminated contract
• Claimed misrep
• S tried to rely on term that excluded liability
• Contract had an entire agreement clause in it
• Held:
o Exclusion was reasonable
o Sophisticated parties
o Should be able to negotiate the clauses amongst themselves
o Not unfair

Question 43

Watford Electronics v Sanderson [2001] Principle

Answer 43

Schedule 2 UCTA 1977

o Exclusion was reasonable
o Sophisticated parties
o Should be able to negotiate the clauses amongst themselves
o Not unfair

Question 44

Smith v Eric Bush Principle

Answer 44

Schedule 2 UCTA 1977

Factors
• – (1) Were the parties of equal bargaining power?
• – (2) In the case of advice, would it have been reasonably practicable to obtain the advice from an alternative source taking into account considerations of costs and time?
• – (3) How difficult is the task being undertaken for which liability is being excluded?
• – (4) What are the practical consequences of the decision on the question of reasonableness?

Question 45

Smith v Eric Bush Facts

Answer 45

o Application for a mortgage
o Paid fee and filled application form
o Told he would be given a copy of the surveyor report
o No one accepted responsibility for in the report
o On the basis of the report, S bought the house
o Problems with the house
o Whoever did the surveyor report, did a horrible job
o Limitation of liability clause
o Factors considered

• – (1) Were the parties of equal bargaining power?
• – (2) In the case of advice, would it have been reasonably practicable to obtain the advice from an alternative source taking into account considerations of costs and time?
• – (3) How difficult is the task being undertaken for which liability is being excluded?
• – (4) What are the practical consequences of the decision on the question of reasonableness?

Question 46

St. Albans City and District Council v International Computers Ltd [1995] Facts

Answer 46

• Limitation clause
• I was multi-national company, many resources
• No equality of bargaining power
• If I didn’t pay, the tax payers would
• Court heavily influence by inequality of bargaining power

Question 47

St. Albans City and District Council v International Computers Ltd [1995] Principle

Answer 47

• Court heavily influence by inequality of bargaining power

Question 48

Britvic Soft Drinks Ltd v. Messer U.K. Ltd [2002] Facts

Answer 48

• manufactured soft drink
• M produced the carbon dioxide
• Liability clause
• Limit to £500k
• Had incident
• Tried to claim damages beyond the amount limited
• Held:
• Limitation of liability is reasonable
• Even in cases of 2 businesses, still can accept limitation clause
• More likely to accept limitation than exclusion

Question 49

Britvic Soft Drinks Ltd v. Messer U.K. Ltd [2002] Principle

Answer 49

• Limitation of liability is reasonable
• Even in cases of 2 businesses, still can accept limitation clause
• More likely to accept limitation than exclusion

Question 50

Freiburger Kommunalbauten GmbH Baugesellschaft & Co KG v Hofstetter (2004) Facts

Answer 50

•	F was construction company
•	Sold parking space to H
•	H said it was unfair that they had to pay when F had not one anything
•	Went to ECJ
•	Held:
o	Was disadvantage to the consumer
o	Said it was not a matter for EC law
o	Disagreed on:
•	Unfairness test
•	What makes it unfair?
•	Must look at national law (none in Germany at the time)
•	General community principles
•	Look at general EC principles of justice
o	ECJ sent it back to national court
o	Still unsure who governs the directive

Question 51

Barclays Bank plc v Kufner [2008] Facts

Answer 51

• whether an experienced business man could rely on UTCCR or UCTA
• K gave guarantee to bank on a loan (to secure it)
• Wanted to buy a yacht through his company
• Loan was between B and company
• He personally guaranteed 3-4 million euros
• B became annoyed
• Tried to enforce the guarantee
• Clause in agreement that allowed B to enforce the loan
• K argued that it was unreasonable under UCTA and UCCTR
• Looked at bargaining positions of party
• Experienced business man
• No real disparity
• Looked at who he was advised by
• K had own lawyer
• Should of known about the clause
• Held:
• Reasonable under UTCA
• UCCTR?
• Fair?
• Not a consumer arrangemet
• He was a business person, not a consumer
• Held:
• Does not apply

Question 52

Barclays Bank plc v Kufner [2008] Principle

Answer 52

• whether an experienced business man could rely on UTCCR or UCTA

• Looked at bargaining positions of party
• Experienced business man
• No real disparity

• Reasonable under UTCA

UTCCR does not apply

Question 53

Bryen & Langley Ltd v Boston [2005] Facts

Answer 53

• term that allowed for adjudication for a contract
• person doing the adjudication did not have jurisdiction
• P did work at B’s property
• Before contract was made, P started work (letter of intent)
• Disputes arose about whether the contract should be paid
• Argued no contract in place
• Adjudication term would not apply]
• Held:
• Depends on who is putting forward the term
• If put forward by consumer, more likely unfair
• Put forward by seller, less likely to be unfair
• B was consumer, they alleged the clause was fair
• Rejected that argument that the consumer did not have to use the adjudication procedure

Question 54

Bryen & Langley Ltd v Boston [2005] Principle

Answer 54

• Depends on who is putting forward the term
• If put forward by consumer, more likely unfair
• Put forward by seller, less likely to be unfair

Question 55

• Exclusion Clause Structure (3)?

Answer 55

1. Is the clause incorporated
•Signature
•Notice:
•	Time
•	Degree
•	Form
•	Unusual term?
•Course of dealing/custom
•	Commercial vs consumer
•	Actual/constructive knowledge
•	Overriding oral warranty 

2. Does the clause cover the loss?
•Contra preferentem rule
•Excluding negligence at common law
•	Canada Steamship
•Fundamental breach/ fundamental term breach 

3. Is there another rule of law invalidating the clause?
•Common law
•Misrepresentation Act. 1967 s. 3
•Unfair Contract Term Act (UCTA) 1977
•	Exclusion/limitation clauses
•	Reasonableness test
•Sale of Goods Act 1979
•	Implied terms
•UTCCR 1999
•	Non-core, standard form terms in consumer contracts
•	Fairness test

Question 56

Incorporation? (3 ways)

Answer 56

•Signature

• Notice:
• Time
• Degree
• Form
• Unusual term?
• Course of dealing/custom
• Commercial vs consumer
• Actual/constructive knowledge
• Overriding oral warranty

Question 57

Does the clause cover the loss? (3)

Answer 57

•Contra Preferentem Rule

• Excluding negligence at common law
• Canada Steamship guidelines

•Fundamental breach/Fundamental Term breach

Question 58

Is the clause invalidated by another rule of law? (5)

Answer 58

• Common law

• Misrep Act 1967, s.3
• UCTA
 1977
• Exclusion/limitation clauses
• Reasonableness Test
• SOGA 1979
• Implied terms
• UTCCR 1999
• Non-core, standard form terms in consumer contracts
• Fairness test

Question 59

s.3 Misrep Act 1967 ?

Answer 59

Exclusion Clause shall be of no effect except in so far as it satisfies the requirement of reasonableness as stated in section 11(1) of the Unfair Contract Terms Act 1977

Schedule 2 ‘Black List’

Question 60

S.3 UCTA 1977?

Answer 60

o Contracts
• where one deals as a consumer or on the other’s written standard terms of business attempts to exclude liability for breach subjected to test of reasonableness.

Question 61

S.11 UCTA 1977?

Answer 61

•The “reasonableness” test

• (1) …the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made
• (2) …regard shall be had in particular to the matters specified in Schedule 2 to this Act

Question 62

Schedule 2 UCTA 1977? (4)

Answer 62

• Guidelines for “reasonableness”

•a) Strength of the bargaining position of the parties;
o Sophisticated v non sophisticated?

•b) Whether the customer received an inducement;
o ex: low price= stricter terms
o more likely to be reasonable

• c) Whether the customer knew or should have known of the term
• d) Whether the term excludes or restricts liability if some condition is not complied with

Question 63

Exclusions from UCTA? (5)

Answer 63

Schedule 1

• Insurance
• Drafted extremely carefully
• Land
• Only the contract for the land itself is excluded

•IP

• Companies
• Contracts relating to the formation of companies

•Some shipping contracts…

Question 64

Schedule 2 UTCCR ‘Grey list”? (5 main ones)

Answer 64

a) Exclude or limit liability of seller in the event of personal injury or death of consumer;

b) Exclude or limit liability of seller in the event of total or partial non-performance
• If seller or supplier says it will do something and tried to exclude liability when does not do it, wil be unfair term

i) Irrevocably bind the consumer to terms of which he had no real opportunity of becoming aware
• No opportunity given to review terms

j) Enable the seller to alter the terms of the contract unilaterally without valid reason
o) Oblige consumer to fulfill all his obligations where the seller does not fulfill his

Question 65

Differences Between UCTA and UTCCR? (9)

Answer 65

1. Type of Dealing:
   o UCTA does not apply to certain types of contract, even if consumer contracts
   o UTCCR apply to consumer contracts of all kinds
2. ‘Consumer’:

   o UCTA applies to both consumer and business-to-business contracts
   o UTCCR apply only to consumer contracts
3. Standard Form or Negotiated
   o UCTA applies whether negotiated or in standard form
   o UTCCR apply only to non-negotiated terms
4. Types of Clauses
   o UCTA applies only to exclusion and limitation of liability clauses
   o UTCCR apply to any non-core term
5. Black List or Grey List
   o UCTA contains guidelines for the application of the reasonableness test (black list)
   o UTCCR contain a so called “grey” list of terms which “may be regarded” as unfair
6. No effect at all

   o UCTA makes certain exclusions or restrictions of no effect at all
   o do not make any particular type of term of no effect at all
7. Reasonableness test v fairness test
   o UCTA subjects other terms to a reasonableness test
   o UTCCR subject the terms to a “fairness” test
8. Burden of Proof
   o UCTA puts the burden of proving that a term within its scope is reasonable on the party seeking to rely on the clause (seller)
   o UTCCR leave the burden of proof that the clause is unfair on the consumer (Consumer)
9. Effectiveness by others than the parties

   o UCTA has effect only between the immediate parties

   o UTCCR empower various bodies to take action as well as parties