Exemption Clauses Flashcards
Exemption Clauses
Roche v Cork and Blackrock [1889]:
Put bag in cloak room with £10 in it. Got ticket with no T&Cs. In absence of exemption clause, held liable to pay the £10.
Exemption Clauses
Leonard v Great Northern Railway [1912]
Turkeys sent by rail. Exclusion clause if any went missing, had
3 days to notify carrier. Complained after time limit. The clause succeeded.
Exemption Clauses
What four tests must an EC satisfy?
(1) If you rely on the exclusion clause as the P or D, it must have been incorporated into the contract
(2) Has the clause been worded to cover the breach that occurred? Q of construction of the clause
(3) Is the clause affected by any Consumer Protection Legislation? (Enforceability)
(4) The exclusion clause must deal with the events that have taken place
Exemption Clauses - Incorporation
How is incorporation generally determined?
Incorporation is adjudged on whether a doc is signed or not. If not, the court sees whether the party relying on the exemption clause made reasonable attempts to bring it to the other party’s attention.
Exemption Clauses - Incorporation - Signed Documents
L’Estrange v Graucob [1934]
Once signed, you are bound by the terms regardless of whether you read them or not
- L signed doc re purchase of cigarette machine. Exclusion clause in body of agreement excluded all liability re express or implied warranties. Machine then turned out to be unfit for purpose.
- Held the signature proved the agreement and as there was no fraud/other invalidating factors he was bound by the terms regardless of whether he read them or not.
Exemption Clauses - Incorporation - Signed Documents
O’Connor v First National Building Society [1991]
- O held bound by exclusion clause in standard form mortgage application excluding liability for defective property as the clause was in large print above the place for the signature.
Exemption Clauses - Incorporation - Electronically Signed Documents
What is the rule re electronic signatures? What Act applies?
The Electronic Commerce Act states that electronic (digital, scanned or typed
signatures) are sufficient and constitute one for purposes of L’Estrange rule
Exemption Clauses - Incorporation - Not Signed Documents
What is the general rule re unsigned documents? What are the 4 main applicable principles?
Adequate Notice Reasonable Steps: For a EC to be incorporated where there’s no signature, reasonable steps must have been taken to bring clause to attention to aggrieved party.
Reasonable Steps have 4 Main Principles:
(i) For reasonable steps to be successful, must bring attention before agreement completed.
(ii) The document containing the clause must be contractual in nature.
(iii) The more onerous the exemption clause the greater responsibility on the proferens.
(iv) Exemption clauses may be incorporated as a result of past dealings
Exemption Clauses - Incorporation - Not Signed Documents
Parker v South Eastern Railway [1877]
- P put bag in cloakroom & paid £2. Ticket said ‘see back’. On back on of the clauses said S was responsible for packages up to £10. Bag went missing and P claimed £24. D argued limited to £10
- Court had to address whether S did everything reasonably possible to publicise the excl clause
- General rule: More onerous the clause the greater the obligation to point it out. Number of points:
(i) If P knew of clause, he’s bound. If he had no notice of it, he’s not bound.
(ii) If notice give and P didn’t notice the cause, depends on whether notice was reasonable
(iii) If P knew there was not merely writing but conditions on the ticket, he’s bound. - Court said signature is fatal no matter how onerous the exclusion clause.
- Held S had done enough to bring the clause to P’s attention and thus P was bound by it.
Exemption Clauses - Incorporation - Not Signed Documents
Ryan v Great Southern & Western Railway [1898]
- G lost R’s baggage. Terms on ticket said standard conditions available elsewhere for inspection
- Held G had failed to do what was reasonably sufficient to give R notice of restriction of liability
Exemption Clauses - Incorporation - Not Signed Documents
Early v Great Southern Railway [1940]
Irish Courts accept the reasonableness standard re unsigned docs:
- Any passenger who went on a journey costing less than standard fare was referred to the co’s special conditions. These were in G’s ‘timetables, bills and notices’ not available for inspection
- One condition stated holders of tickets of less than standard fare did not have a right of action against G for injuries sustained. E was injured.
- Despite the fact there were no copies of the T&Cs available at the place where E boarded the train, the
judge held G took reasonable steps to bring them to E’s attention.
Exemption Clauses - Incorporation - Bringing Attention to Clause
Western Meats Ltd v National Ice and Cold Storage [1982]
- N provided cold storage facilities to W: tried to rely on exemption clause when difficulties arose
- Held a businessman offering special services but accepting no responsibility for it must bring it home clearly to the party that he accepts no such responsibility.
Exemption Clauses - Incorporation - Bringing Attention to Clause
James Elliott Construction v Irish Asphalt Ltd [2014] Irish Case
- Contract re supply of infill: Had to decide if terms in the delivery dockets were contractual terms.
- Held there was an overarching contract for supply of goods for a project, incl. types of goods, prices & credit terms. After this, separate contracts made for sale & supply of infill during project
- SC held a delivery docket could be a contractual doc, but on the facts, it wasn’t.
- The dockets, however, were signed. Court held key issue was whether the signed docs actually contained the T&Cs: here they did not - they stated T&Cs were available on request!!
- The limitation clause was onerous and not on the delivery dockets and not brought to attention of anyone in JEC. Only included on the credit notes which was read by staff in accounts dept
- Held for notice to be reasonable, it must go to someone in the co at an appropriate level: giving an
onsite foreman notice was not sufficient to be reasonable notice.
Exemption Clauses - Incorporation - Timing
Olley v Marlborough Court Ltd [1949]
- M let room to H & W for a week. Paid in advance. Notice on wall of hotel room stating the hotel accepts no liability for losses unless put in manager’s safe. W’s furs and jewellery stolen.
- Held M was liable as the incorp of the EC in the room came after contract completed at front desk
Exemption Clauses - Incorporation - Timing
Thornton v Shoe Lane Parking [1971]
- Sign outside multi-story car park said ‘parking at owner’s risk’. P took ticket from ticket machine.
- Ticket said “ticket issued subject to T&Cs displayed in premises”. T’s car was then damaged.
- Held automatic machines not same as railway tickets: machines are like booking clerks i.e. the contract’s made at the machine when P puts money in. Brought to his notice before entering?
- Held ticket issued referred him to T&Cs inside the car park. Offer was made at the notice at the entrance. Acceptance made by putting in money.
- Held T not bound: terms came out after conclusion of contract when P entered the car park.
