Exemption clauses

Question 1

What are the three things to consider regarding exemption clauses?

Answer 1

1. Incorporation
2. Construction
3. Statutory controls

Question 2

What is the general rule for construction of exemption clauses?

Answer 2

Contra proferentem – any doubt as to meaning or scope of EC, will be resolved against party seeking to rely on it.

Question 3

When will courts construe a clause in contra proferentum less rigorously?

Answer 3

• where clause merely limits
• commercial parties of equal bargaining power

Question 4

How can negligence liability be excluded?

Answer 4

Clear words

Question 5

What is the circumstances where general words are likely to be considered effective for excluding liability for negligence?

Answer 5

Cases where the only basis for liability is negligence

Question 6

What is the circumstances where general words are likely to be considered ineffective for excluding liability for negligence?

Answer 6

Cases where the party will be liable irrespective of negligence

Question 7

What does the Unfair Terms Act relate to?

Answer 7

Contracts between businesses

Question 8

Can negligence liability be excluded under UCTA for death or personal injury?

Answer 8

No

Question 9

Can negligence liability be excluded under UCTA for loss other than death/personal injury?

Answer 9

Yes if reasonable

Question 10

Can negligence liability be excluded under UCTA for breach of statutory implied terms about quality of goods?

Answer 10

Yes if reasonable

Question 11

Can a party exclude liability for breach of contract if the exclusion clause is in their ‘standard terms’? (UCTA)

Answer 11

Yes if reasonable

Question 12

Can a party rely on a contract term claiming to be entitled to render a performance substantially differnet to what is reasonably expected? (UCTA)

Answer 12

Yes if reasonable

Question 13

Can a party rely on a contract term claiming to be entitled to render no performance at all? (UCTA)

Answer 13

Yes if reasonable

Question 14

What is the reasonableness test in UCTA?

Answer 14

• Fair and reasonable to be included
• Having regard to circumstances which were/ought reasonably to have been known

Question 15

What are the schedule 2 considerations in the UCTA?

Answer 15

• bargaining power of parties
• inducment to enter agreement
• customer lnew/ought to have known extent of term
• reasonable to expect compliance with term
• goods made to special order

Question 16

Can a party exclude/restrict liability for death/personal injury from negligence? (CRA)

Answer 16

No

Question 17

Can a party exclude/restrict liability for statutory terms implied for goods? (CRA)

Answer 17

No

Question 18

Can a party exclude/restrict liability for statutory implied terms for digital content? (CRA)

Answer 18

No

Question 19

Can a party exclude/restrict liability for statutory implied terms for services? (CRA)

Answer 19

• cannot entirely exclude term for service to be performed with reasonable care and skill
• cannot limit liability for service to be performed with reasonable care and skill if consumer cannot recover paid price

Question 20

What is the general rule regarding exemption clauses in CRA?

Answer 20

not binding if unfair

Question 21

What is unfair in terms of the CRA?

Answer 21

• contrary to good faith
• causes significant imbalance in parties rights/obligations to detriment of consumer

Question 22

What cannot be assessed for fairness?

Answer 22

• terms specifying main subject
• price if:
  
  • transparent
  • prominent

Question 23

What are the anti avoidance prohibitations in the CRA?

Answer 23

• cant have separate contract not to pursue claims
• cant make eenforcement conditions onerous