exemption clauses Flashcards
Clark def
an exemption clause is a contractual term by which one party attempts to cut down either the scope of his contractual duties or regulate the other party’s right to damages or other remedies
L’estrange v Graucob
P bought machine off D, terms in small print said D was not liable if the machine was not fit for purpose, held where a person has signed a contractual document having not been induced by fraud or misrepresentation, they are bound by the terms whether or not they have read them
Curtis v Chemical Cleaning
P gave wedding dress to cleaner who asked her to sign a form and told her of the exclusion of liability for damages to beads only, dress was stained, held a clause is not legally enforceable where the drafting party misreps the effect of the clause, the exemption clause was not properly incorporated into contract & P got damages
James Elliot v Irish Asphalt
D supplied P with aggregate to fill building site, product was defective, P sought damages, D claimed exclusion clause in t&c which P signed by signing delivery docket, SC held delivery docket is not a contractual document
Olley v Marlborough Court
P checked into hotel & signed contract, sign in hotel room saying no liability for theft, fur coat stolen, P sued & succeeded as an exclusion clause can only be incorp if given notice prior to entering contract
Thronton v Shoe Lane Parking
P entered carpark & got ticket, ticket said contract subject to t&c displayed inside carpark, terms only seen after entered carpark, held they were not incorp into contract as later notice of terms cannot change the contract that had already been formed
Ryan v Great Southern Railway
P’s luggage lost, ticket contained reference to term stated elsewhere with exclusion clauses, P unaware of conditions, held clause not incorp as D had not taken reasonable steps to bring clause to the attention of P
Interfoto Picture Library
where a term is particularly onerous or unusual the party relying on that term must show that it was fairly brought to the attention of the other party
Spurling v Bradshaw
P was bound by exclusion clause which he hadn’t read where he regularly stored goods with D on identical terms
Miley v McKenchie
P always left clothes in laundry, got receipt with exclusion clauses, clothes were damages, held that although the clause was given after the contract had been entered into, it was properly incorp based on the previous course of dealings
Andrews v Singer
agreement to buy a new car but the car was delivered with mileage, D argued exemption clauses exempted him from all liabilities from legislation, held exemption clause cannot override an express term
Burton v English
if there is any doubt as to construction, it is to be construed strictly against the party in whose favour it has been made
White v Warwick
P hired bikes, saddle was unsteady and woman fell and was injured, clauses stated nothing in the agreement shall render owner liable for injury, held clause excluded liability in tort only, a claim in tort operated outside the contract
Livingstone v Riley (NZ HC)
parties are not be taken to have intended to exclude common law liability unless they have said so in clear and unambiguous terms
Regan v RIAC
clause excluding liability for accidents ‘however caused’ was wide enough to embrace negligent accidents as well as pure accidents for which no one is responsible at law
Clayton v Love
P contracted with D to deliver frozen scampi, they came unfrozen so were useless, clause that claims must be made within 3 days of arrival, another clause excluded liability for damaged goods, held both clauses were not operative as D committed fundamental breach
Photo Production v Securicor Transport
HOL overruled doctrine fo FB as a rule of substantive law as opposed to a rule of contsruction
