exemption clauses

Question 1

what are the two types of exemption clauses

Answer 1

limitation
exclusion

Question 2

whats a limitation clause

Answer 2

sets a limit on liablity (damages)

Question 3

whats an exclusion clause

Answer 3

seeks to exclude all liablity for certain breaches on contract

Question 4

what is the approach for dealing with exemption clauses

Answer 4

are they effective at common law
are there statutory provisions reducing effectiveness of clause

Question 5

when looking common law controlls what are the 2 things to look at

Answer 5

has the clause been incooperated
do words cover the aledged breach

Question 6

in what ways can clauses be inccoperated into a contract

Answer 6

by signature
by reasonable notice
by previous course of dealing

Question 7

what will happen if you have a signed a contract + case

Answer 7

youre bound
l’estrange v groucob

Question 8

what is the exception for if youve signed a contract + case

Answer 8

if you’ve been mislead
curtis v chemical cleaning + dyeing

Question 9

what is the law over incooperation by reasonable notice

Answer 9

if seperate written terms are presented at the same time as contract is made eg on a sign then the terms will be incooperated

Question 10

what 3 things will the court look at when seeing if theres incooperation by reasonable notice

Answer 10

brought to attention
given in a way a reasoanble person would expect to see terms
unusual/onerous terms

Question 11

give a case for a notice bing brought to attention

Answer 11

olley v malborough court hotel

Question 12

give a case for the notice being presented in a way a reasonable person would expect to see terms

Answer 12

thompson v london, midland and scotish railway co

Question 13

what is the law over incooperation by previous course of dealing

Answer 13

if parties have previously made contracts and they included an exemption clause they may also apply to subsiquent agreements

Question 14

what is the rule for previious course of dealing + case

Answer 14

must be consistent course of dealing
hollier v Rambler motors

Question 15

what are the other 3 things to look at for incooperation of terms by common law

Answer 15

interpretation
harsh terms
3rd patries

Question 16

what is the latin rule for interpritation

Answer 16

contra proferentem

Question 17

whats contra proferentem

Answer 17

if words are ambigous they will be interpreted in a way less favorable to the party relying on them

Question 18

what does contra proferentem apply to

Answer 18

one sided terms

Question 19

give a case for contra proferentem

Answer 19

transocean drilling v providence

Question 20

what is the law over harsh terms

Answer 20

if a term is harsh the party relying on it must take greater steps to bring it to the other parties attention

Question 21

give a case for harsh terms

Answer 21

interphoto picture library v stiletto

Question 22

can a 3rd party rely on an exclusion clause + case

Answer 22

likely not
scruttons v midlands silicones

Question 23

what are the 2 key acts

Answer 23

unfair contract terms act 1977
consumer rights act 2015

Question 24

what type of agreemnets does the unfair contract terms act 1977 cover

Answer 24

business to business

Question 25

what type of agreements does the consumer rights act 2015 cover

Answer 25

business to consumer

Question 26

ucta 1977 what effect do ineffective controls have

Answer 26

none

Question 27

what section of ucta excludes liability for death/personal injury by negligence

Answer 27

s2(1)

Question 28

what section of ucta excludes liability for breach of implied condition

Answer 28

s6(1)

Question 29

what section of ucta looks at reasonableness

Answer 29

s11

Question 30

what does s2(2) of ucta say

Answer 30

cannot exclude/restrict liability for death or personal injury unless reasonable

Question 31

can you exclude liability for breach of s13,14/15 SOGA 1979

Answer 31

only if reasonable

Question 32

what does s11(5) ucta 1977 say

Answer 32

party who relies on the clause must prove its reasonable

Question 33

give a case for party who relies on the clause must prove its reasonable

Answer 33

warren v trueprint

Question 34

what are the 3 tests for reasonableness and sections of ucta they come under

Answer 34

knowledge test s11(1) circumstances s11(2) reaconces s11(4)

Question 35

what does the knowledge test ask

Answer 35

is the clause reasonable in light of what the parties knew

Question 36

give a case for the knowlege test

Answer 36

smith v eric s bush

Question 37

what will the courts look at when they look at circumstances for reasonableness

Answer 37

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

Question 38

give a case for circumstances and relative bargaining strength

Answer 38

watford electronic ltd v sanderson CFI

Question 39

what do the courts look at for reacorces for reasonableness

Answer 39

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

Question 40

give a case for reacorces and reasonableness

Answer 40

george mitchell ltd v finney lock seeds

Question 41

what does s31 CRA say

Answer 41

some exclusion clauses are barred altogether and if present not effective

Question 42

what does cra s65 say

Answer 42

liablity for death/personal injury from negligence cannot be excluded

Question 43

what section covers fainess in CRA

Answer 43

s65

Question 44

what will happen if a term isnt fair under CRA

Answer 44

it isnt binding on consumer

Question 45

when will a term be unfair

Answer 45

if its contrary to the requirement of good faith causes significant imballance to the parties right and obligationto the detriment of the customer

Question 46

what is good faith defeined as

Answer 46

fair and open dealing

Question 47

what deos fair and open dealing mean

Answer 47

no unexpected traps not taking advantage of consumer

Question 48

what gives examples of unfair terms

Answer 48

schedual 2

Question 49

what terms arnt subject to fairness test

Answer 49

terms about the main subject matter of the contract/ price if transparent/ prominent under s64 CRA