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law paper 4 section b > exemption clauses > Flashcards

exemption clauses Flashcards

1
Q

what are the two types of exemption clauses

A

limitation
exclusion

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2
Q

whats a limitation clause

A

sets a limit on liablity (damages)

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3
Q

whats an exclusion clause

A

seeks to exclude all liablity for certain breaches on contract

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4
Q

what is the approach for dealing with exemption clauses

A

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

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5
Q

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

A

has the clause been incooperated
do words cover the aledged breach

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6
Q

in what ways can clauses be inccoperated into a contract

A

by signature
by reasonable notice
by previous course of dealing

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7
Q

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

A

youre bound
l’estrange v groucob

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8
Q

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

A

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

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9
Q

what is the law over incooperation by reasonable notice

A

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

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10
Q

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

A

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

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11
Q

give a case for a notice bing brought to attention

A

olley v malborough court hotel

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12
Q

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

A

thompson v london, midland and scotish railway co

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13
Q

what is the law over incooperation by previous course of dealing

A

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

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14
Q

what is the rule for previious course of dealing + case

A

must be consistent course of dealing
hollier v Rambler motors

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15
Q

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

A

interpretation
harsh terms
3rd patries

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16
Q

what is the latin rule for interpritation

A

contra proferentem

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17
Q

whats contra proferentem

A

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

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18
Q

what does contra proferentem apply to

A

one sided terms

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19
Q

give a case for contra proferentem

A

transocean drilling v providence

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20
Q

what is the law over harsh terms

A

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

21
Q

give a case for harsh terms

A

interphoto picture library v stiletto

22
Q

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

A

likely not
scruttons v midlands silicones

23
Q

what are the 2 key acts

A

unfair contract terms act 1977
consumer rights act 2015

24
Q

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

A

business to business

25
Q

what type of agreements does the consumer rights act 2015 cover

A

business to consumer

26
Q

ucta 1977
what effect do ineffective controls have

A

none

27
Q

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

A

s2(1)

28
Q

what section of ucta excludes liability for breach of implied condition

A

s6(1)

29
Q

what section of ucta looks at reasonableness

A

s11

30
Q

what does s2(2) of ucta say

A

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

31
Q

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

A

only if reasonable

32
Q

what does s11(5) ucta 1977 say

A

party who relies on the clause must prove its reasonable

33
Q

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

A

warren v trueprint

34
Q

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

A

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

35
Q

what does the knowledge test ask

A

is the clause reasonable in light of what the parties knew

36
Q

give a case for the knowlege test

A

smith v eric s bush

37
Q

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

A

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

38
Q

give a case for circumstances and relative bargaining strength

A

watford electronic ltd v sanderson CFI

39
Q

what do the courts look at for reacorces for reasonableness

A

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

40
Q

give a case for reacorces and reasonableness

A

george mitchell ltd v finney lock seeds

41
Q

what does s31 CRA say

A

some exclusion clauses are barred altogether and if present not effective

42
Q

what does cra s65 say

A

liablity for death/personal injury from negligence cannot be excluded

43
Q

what section covers fainess in CRA

A

s65

44
Q

what will happen if a term isnt fair under CRA

A

it isnt binding on consumer

45
Q

when will a term be unfair

A

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

46
Q

what is good faith defeined as

A

fair and open dealing

47
Q

what deos fair and open dealing mean

A

no unexpected traps
not taking advantage of consumer

48
Q

what gives examples of unfair terms

A

schedual 2

49
Q

what terms arnt subject to fairness test

A

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

law paper 4 section b (11 decks)

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