exclusion clauses and limitation clauses Flashcards
can the parties generally agree any terms they like?
yes due to the freedom of contract
3 things to decide if a term is part of a contract
- whether it is signed
- whether it is incorporated into the contract
- whether its included due to previous dealings between the parties.
cases for in the agreement was signed
. l’estange v graucob- brought a cigarette vending machine she signed the contract excluding all implied conditions and warranties. she was bound by exclusion clause even though the machine wasn’t fit for purpose
. Curtis v chemical cleaning- took wedding dress to be cleaned. signed a document saying cleaners weren’t responsible for any damages. the dress had a large stain on it. cleaner could not rely on exclusion clauses as they only excluded for lost beads or sequins
what is notice of the terms being incorporated
terms in an unwritten contract. if you introduce new terms after contract is formed, terms wont be valid.
olley v Marlborough court hotel
claimant stayed in a hotel. contract was formed at the desk. someone broke in and took belongings. the hotel said they weren’t responsible for any theft as there was a notice on the bedroom wall. not valid as it was after the contract was made.
chapelton v Barry Urban district council
hired 2 deck chairs and received 2 tickets. he assumed they were receipts. on the back of the tickets it stated they couldn’t claim if any accidents happened. the chair collapsed and injured the victim. council were held liable for injuries as he wasn’t to know that the tickets were a contractual agreement.
Thornton v shoe lane parking
claimant injured in a car park. where tickets were issued by machine, it stated that they were parking at the owners risk, excluded personal injury
cases for previous dealings
McCutchen v David macbrayne- claimant used the defendants ferries. he was asked to sign a document with an exclusion clause. ferry sank and a car was destroyed. exclusion clause was not incorporated
what is the effect of a third party on exclusion clauses
the exclusion clause in a contract may not offer protection to parties other than the parties on the contract
what are statutory controls
when an exclusion clause has not been successfully incorporated into a contract according to the normal rules
clauses under the unfair contract terms act 1977
s2(1)- can not exclude for death or personal injury
s2(2)- can not excuse liability for negligence
what is the test of reasonableness
- s11(1)- where the insertion of of the clause was reasonable. knowledge test
- s11(2)- exclusion clauses involved breaches of the implied conditions
- s11(4)- relates the the limitation clauses
main sections of the consumer rights act for goods
s9- satisfactory quality
s10- fit for purpose
s11- as described
s.20- reject goods temporarily
s.23- replacement or repairs
s.24- price rejection
s.31- cant exclude liability
key sections of the consumer rights acts for services
s49- done with reasonable care and skill
s52- reasonable time
5.57- cant exclude liability for services
s55- right to repeat performance
s56- right to a price reduction
