Exclusion Clauses A03 3/4

Question 1

Sentence/Points

Answer 1

1. Idea of an excl clause is unfair (H) controls
2. Strict rules on incorporation, clear and no abuse
3. Contra Proferentum
4. Wide range of protection - stat + com law, less issues

Question 2

Point 1: Unfair

Answer 2

• The idea of having terms which remove liability is unfair because they out weaker party at disadvantage
• E.g. D could mistreat C then try to remove liability using the term
• (H) Controls under common law to prevent this, makes it hard for D to rely on exclusion clauses, especially in they are unfair (S62)

Question 3

Point 2: Strict Rules

Answer 3

• Strict rules around if they are incorporated into the contract
• Must be clear + easily found or else can’t enforce
• Prevents an abuse of power
• Protects weaker parties by forcing terms to be clear so less likely they enter into an unfair contract

Question 4

Point 3: Contra Proferentum

Answer 4

• A01: What the rule is (Hollier v Rambler Motors)
• Favours the weaker party by forcing D to make terms clear
• Therefore less likely to be able to abuse their power

Question 5

Point 4: Wide Range

Answer 5

• Controls under Statutory and Common Law
• Many ways parties can be protected
• Large companies are more likely to make their contracts with clear and obvious excl clauses so avoid sue
• Means less cases coming into court overall

Question 6

Other Points

Answer 6

• Signature + over-riding oral statement
• By reasonable notice + ticket rule