Exemption Flashcards
What must you do if wording in a contract is clear?
Analyse the ordinary and natural meaning of the words
What happens if there is any doubt as to the meaning and scope of an exemption clause?
The ambiguity will be resolved against the party (the proferens) seeking to rely upon it.
How could you avoid contra proferentes in relation to a clause excluding liability for negligence?
- By referring to negligence directly
- or when only the basis for liability is negligence and words are general, the clause may still work
What is the role of the contra proferentes rule in commercial contracts between parties of equal bargaining power?
The rule has a very limited role in such contracts.
Can an incorporated and unambiguous clause protect third parties?
Unlikely due to the doctrine of privity of contract.
When does the Unfair Contract Terms Act 1977 apply?
Only when both parties are acting in the course of business.
Can the Unfair Contract Terms Act 1977 exempt from liability for death or personal injury due to negligence?
No, it cannot exempt from liability for death or personal injury as a result of negligence.
Under what condition can liability for other loss resulting from negligence be exempted under UCTA 1977?
Only if the term or notice satisfies the requirement of reasonableness.
When can liability for breach of statutory terms about quality of goods be exempted? (UCTA)
Only if the term or notice satisfies the requirement of reasonableness (UCTA only)
Can contractual performance be substantially different or render no performance at all under UCTA 1977?
Yes, but only if the term or notice satisfies the requirement of reasonableness.
What circumstances should be considered for the reasonableness test? (UCTA)
The circumstances which were or ought reasonably to have been known or to the contemplation of the parties when the contract was made.
What factors must be considered for the reasonableness test? (UCTA)
- Whether the customer received inducement to enter into the term.
- Whether the customer knew or ought reasonably to have known of the existence and extent of the term.
- Whether it was reasonable at the time of the contract to expect compliance with the condition would be practicable.
- Whether goods were manufactured to the special order of the consumer.**
To which contracts does the Consumer Rights Act 2015 apply?
Business to Customer contracts.
Can the Consumer Rights Act 2015 exempt from liability for death or personal injury?
No, it cannot exempt from liability for death or personal injury.
Can the Consumer Rights Act 2015 exempt from liability for breach of statutory implied terms about goods, digital content, or service?
No - CRA goes further than UTCTA
When is any term not binding under the Consumer Rights Act 2015?
If it is unfair. However, this does not apply to the main subject matter provided the terms are transparent and prominent.
What are anti-avoidance provisions under the Consumer Rights Act 2015?
Provisions that force a party into a separate contract where it agrees not to pursue claims or make liability/its enforcement subject to onerous conditions
Are anti-avoidance provisions valid?
No, generally not.
