exemption clauses Flashcards
what are the two types of exemption clauses
limitation
exclusion
whats a limitation clause
sets a limit on liablity (damages)
whats an exclusion clause
seeks to exclude all liablity for certain breaches on contract
what is the approach for dealing with exemption clauses
are they effective at common law
are there statutory provisions reducing effectiveness of clause
when looking common law controlls what are the 2 things to look at
has the clause been incooperated
do words cover the aledged breach
in what ways can clauses be inccoperated into a contract
by signature
by reasonable notice
by previous course of dealing
what will happen if you have a signed a contract + case
youre bound
l’estrange v groucob
what is the exception for if youve signed a contract + case
if you’ve been mislead
curtis v chemical cleaning + dyeing
what is the law over incooperation by reasonable notice
if seperate written terms are presented at the same time as contract is made eg on a sign then the terms will be incooperated
what 3 things will the court look at when seeing if theres incooperation by reasonable notice
brought to attention
given in a way a reasoanble person would expect to see terms
unusual/onerous terms
give a case for a notice bing brought to attention
olley v malborough court hotel
give a case for the notice being presented in a way a reasonable person would expect to see terms
thompson v london, midland and scotish railway co
what is the law over incooperation by previous course of dealing
if parties have previously made contracts and they included an exemption clause they may also apply to subsiquent agreements
what is the rule for previious course of dealing + case
must be consistent course of dealing
hollier v Rambler motors
what are the other 3 things to look at for incooperation of terms by common law
interpretation
harsh terms
3rd patries
what is the latin rule for interpritation
contra proferentem
whats contra proferentem
if words are ambigous they will be interpreted in a way less favorable to the party relying on them
what does contra proferentem apply to
one sided terms
give a case for contra proferentem
transocean drilling v providence
what is the law over harsh terms
if a term is harsh the party relying on it must take greater steps to bring it to the other parties attention
give a case for harsh terms
interphoto picture library v stiletto
can a 3rd party rely on an exclusion clause + case
likely not
scruttons v midlands silicones
what are the 2 key acts
unfair contract terms act 1977
consumer rights act 2015
what type of agreemnets does the unfair contract terms act 1977 cover
business to business
what type of agreements does the consumer rights act 2015 cover
business to consumer
ucta 1977
what effect do ineffective controls have
none
what section of ucta excludes liability for death/personal injury by negligence
s2(1)
what section of ucta excludes liability for breach of implied condition
s6(1)
what section of ucta looks at reasonableness
s11
what does s2(2) of ucta say
cannot exclude/restrict liability for death or personal injury unless reasonable
can you exclude liability for breach of s13,14/15 SOGA 1979
only if reasonable
what does s11(5) ucta 1977 say
party who relies on the clause must prove its reasonable
give a case for party who relies on the clause must prove its reasonable
warren v trueprint
what are the 3 tests for reasonableness and sections of ucta they come under
knowledge test s11(1)
circumstances s11(2)
reaconces s11(4)
what does the knowledge test ask
is the clause reasonable in light of what the parties knew
give a case for the knowlege test
smith v eric s bush
what will the courts look at when they look at circumstances for reasonableness
relative bargaining strength
inducement to agree a term
did other know the term existed/what it excluded
were the goods a special order
reasonable to expect clause
give a case for circumstances and relative bargaining strength
watford electronic ltd v sanderson CFI
what do the courts look at for reacorces for reasonableness
the reacorces d could expect to be available for meeting liability should it arise
how far it was practical to take out insurance against liablity
give a case for reacorces and reasonableness
george mitchell ltd v finney lock seeds
what does s31 CRA say
some exclusion clauses are barred altogether and if present not effective
what does cra s65 say
liablity for death/personal injury from negligence cannot be excluded
what section covers fainess in CRA
s65
what will happen if a term isnt fair under CRA
it isnt binding on consumer
when will a term be unfair
if its contrary to the requirement of good faith causes significant imballance to the parties right and obligationto the detriment of the customer
what is good faith defeined as
fair and open dealing
what deos fair and open dealing mean
no unexpected traps
not taking advantage of consumer
what gives examples of unfair terms
schedual 2
what terms arnt subject to fairness test
terms about the main subject matter of the contract/ price if transparent/ prominent under s64 CRA
