Exclusion clauses- Common law controls

Question 1

What is the structure for common law controls?

Answer 1

1. Was the clause signed (incorporation)
2. Was notice of the clause given at the formation of the contract. (incorporation)
3. Have there been any previous dealings
4. The contra proderentem rule

Question 2

Which cases go with whether the clause has been signed?

Answer 2

1. L’estrange V Graucob
2. Curtis V Chemical cleaning.

Question 3

L’Estrange V Graucob

Answer 3

-cafe owner + cigarette vending machine- contract excluded all implied terms + warranties
-didn’t read it.
-Couldn’t rely on implied terms because she signed it.

Question 4

When will the rule from L’Estrange V Graucob not apply?

Answer 4

-When the other party misrepresented what was excluded from the contract.

Question 5

L’estrange V Graucob

Answer 5

-dry cleaners + wedding dress
-signed document excluding liability for damage- told it was just for sequins + beads
-She was told the document was something other than what it was- oral reassurances meant no exc.

Question 6

Grogan V Robin Plant hire

Answer 6

-A timesheet is not a type of document that would be considered a contract.

Question 7

Which cases go with whether notice of the clause was given at the formation of the contract?

Answer 7

1. Chapelton V Barry
2. Thorton V Shoe Lane Parking
3. Olley V Marlborough court
4. Thompson V LMS railway

Question 8

Olley V Marlborough Court

Answer 8

1.checked into hotel, exclusion clause behind the door regarding theft of personal belongings.
2. Contract had already been made- exclusion clause invalid.

Question 9

Chapelton V Barry

Answer 9

-given ticket after deckchair hire
-ticket not a contractual document + invalid as given after.

Question 10

Thornton V Shoe Lane Parking

Answer 10

• exclusion clause inside carpark- not valid
• excluded personal injury too- far reaching
  -LORD DENNING’S RED HAND RULE.

Question 11

What was Lord Denning’s Red hand rule?

Answer 11

‘red ink with a red hand pointing to it, or something equally as startling’

Question 12

Thompson V LMS railway.

Answer 12

-company had taken sufficient steps. (adequate notice of terms).
-it is irrelevant that the customer cannot read.

Question 13

Which cases go with whether the term is incorporated as a result of previous dealings of the party?

Answer 13

1. Hardwick Game Farm V Suffolk Agricultural Policy
2. McCutcheon V David MacBrayne
3. Hollier V Rambler Motors.

Question 14

Hollier V Rambler Motors.

Answer 14

1.business not sufficiently regular for the exclusion clauses he signed before regarding fire to apply.

Question 15

McCutcheon V David MacBrayne

Answer 15

-C’s relative taking car onto ferry- given receipt but signed nothing
-No consistent course of action so anything signed would become invalid + couldn’t assume claimant knew about exclusion clause.

Question 16

Hardwick Game Farm V Suffolk Agricultural Policy

Answer 16

-regally did business together
-terms written on sold note sent to buyer
-it didn’t matter they were not read- incorporated.

Question 17

What is meant by the Contra Proderentem rule?

Answer 17

-when there is doubt in the meaning of the contract the words will be construed against the person who put them into the contract.
-good between trader/ consumer contracts.

Question 18

Which case goes with the Contra Proderentem rule?

Answer 18

Transocean drilling UK V Providence resources plc

Question 19

Transocean drilling UK V Providence resources plc?

Answer 19

-the exclusion clause was written up and benefitted both parties
-only should be used when words are ambiguous / one sided.