Exclusion Clauses And Limitation Clauses Flashcards
An exclusion clause is a term that prevents one party from being liable in certain situations for a breach of contract
A limitation clause is a term in a contact where one party will restrict their liability in certain situations for a breach of contract
Common law: has the clause been incorporated into the contact- a signed document is incorporated into the contract even if it has not been read
L’Estrange v Graucob
Common law: has the clause been incorporated into the contact- exception to signed document is that if it has been misrepresented before it was signed
Curtis
Common law: has the clause been incorporated into the contact- another exception to a signed document is that the clause is not one to be expected of that type of document
Grogan
Common law: has the clause been incorporated into the contact- a written clause that is separate at the time the contract was made, will only be incorporated if the party relying on it has given the other party reasonable notice of it
Parker
Common law: has the clause been incorporated into the contact- a written clause that is not expected to be on the type of document, will not be incorporated into the contract as reasonable notice has not been given
Chapleton
Common law: has the clause been incorporated into the contact- if there was prior course of dealing then the exclusion clause will be incorporated
Arcos v Hillias
Common law: has the clause been incorporated into the contact- prior course of dealings must be on a regular and consistent basis for it to be incorporated
Macbrayan
Common law: Does the clause cover the breach- of the word are clear and unambiguous the term is incorporated
Pink Floyd
Common law: Does the clause cover the breach- if the words are unclear and ambiguous, the reasonable persons interpretation of the clause is considered, their parties understanding and intention at the time the contract was formed
West Bromwich Building Society
Common law: Does the clause cover the breach- the post contract conduct of the parties is not considered when interpreting the clause
EON Climate and Renewables
Common law: Does the clause cover the breach- CONTRA PROFERENTEM RULE- this interprets a he clause least favourably for the party relying on it. THIS RULE is required in consumer contracts
S69 Consumer Rights Act 2015
Common law: Does the clause cover the breach- of liability is excluded or restricted for negligence, the clause words must clearly refer to it
Shell Chemicals
Common law: Does the clause cover the breach- liability cannot be excluded for personal injury of death
Business agreement (1)
Consumer agreements (2)
1). S2(1) unfair contract terms act 1977
2). S65 consumer rights act 2015
Statutory regulations: consumer agreements: governed by
Consumer rights act 2015
Statutory regulations: consumer agreements: all terms in the contract should be fair
S64 CRA 2015
Statutory regulations: consumer agreements: A clause cannot exclude liability for death or personal injury
S65 CRA 2015
Statutory regulations: consumer agreements: exclusion clauses cannot permit to exclude liability for;
Satisfactory quality
Fit for purpose
Good matching their description
S9 CRA 2015
S10 CRA 2015
S11 CRA 2015
Statutory regulations: consumer agreements- an unfair term is not binding on the consumer
S62 CRA 2015
Statutory regulations: consumer agreements- Terms must be TRANSPARENT and PROMINENT (for example if a lengthy document this is not a transparent exclusion clause as this should be brought to the attention of the consumer)
NO PRECEDENT
Statutory regulations: consumer agreements- a term is unfair, if contrary to good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer
S64(2) CRA 2015
Statutory regulations: consumer agreements- ……. Provides that the following can be unfair, fees and charges hidden in the small print, something that try Ds to limit the consumers legal rights, disproportionate default charges and excessive early termination charges
Schedule 2 CRA 2015
Statutory regulations: business agreements- governed by
Unfair contract terms act 1977
Statutory regulations: business agreements- liability cannot be excluded for death or personal injury
S2(1) unfair contract terms act 1977
Statutory regulations: business agreements- a business can exclude/ restrict liability for all other types of loses, but only if it is reasonable for them to do so
S2(2) unfair contract terms act 1977
Statutory regulations: business agreements- subject to the S11 reasonableness test, …………. Provides the business cannot exclude or restrict liability for breach of contract, provide substantially different performance to that reasonably expected and provided no performance at all
S3(1) unfair contract terms act 1977
Statutory regulations: business agreements- The ……… reasonableness test, requires the court to consider whether the term is a fair and reasonable one given in the circumstances
S11 unfair contract terms act 1977
Statutory regulations: business agreements- ………….. requires S11 reasonable test to consider the:
Strength of the bargaining position of the parties
Whether the customer received an inducement to accept the term
Whether the customer knew or ought to have known about the term and whether such terms are generally used in a particular trade
Schedule 2
(there are more to consider see classroom)
