Exemption Clauses Flashcards
Photo Production v Securicor Transport
An exemption clause is a clause that excludes or modifies an obligation
L’Estrange v Graucob
Signature binds, unless fraudulent or misrepresentaiton
Curtis v Chemical Cleaning
Signature will not bind where exemption clause has been misrepresented to the signor
Grogan v Robin Meredith Plant Hire
Document must have contractual effect
Saunders v Anglia Building Society
Non est factum - cases of blindness, illiteracy (known) or senility, so they don’t know what they are signing
Claimant had broken her reading glasses so signed contract without reading it - non est factum rejected
Parker v South Eastern Railways
Proferens must have taken reasonable steps to bring the term to the other party’s notice - indicated on the front of the ticket that there was a limitation clause on the reverse
Thompson v London, Midland & Scottish Railways
Incorporation by reference - must be notice of where to find
Claimant’s illiteracy not allowed since ticket stated to look for terms and conditions on platform
Harvey v Ventilatorenfabrik
Contract was written in German, proferens knew claimant couldn’t read German - clause not incorporated
Henderson v Stevenson
Where a document does not have clear words on the fact of it directing attention to an exemption clause on the reverse, unlikely that such a clause will be incorporated
Sugar v London, Midland & Scottish Railway
Clause was rendered illegible by a date stamp - not incorporated
Olley v Malborough Court Hotel
Any clause will not amount to a binding term if it is only communicated after the contract is made
Thornton v Shoe Lane Parking
Exemption clause must be brought to claimant’s attention before contracting
Ticket production = offer
Taking the ticket = acceptance
If the term is onerous then more notice required (exclusion of liability for personal injury)
Chemical Transport v Exnor Craggs
Signature will incorporate most onerous clauses unless in extreme circumstances (not a clause you’d expect int that type of contract)
Chapelton v Barry UDC
Document must have contractual effect - given raffle ticket (wouldn’t expect to be binding contractual document)
McCutcheon v MacBrayne
Course of regular and consistent dealings on same term will incorporate exclusion clause
Hollier v Rambler
3/4 times in 5 years - not consistent or regular
Harry Kendall & Sons v William Lillico
3-4 times a month for 3 years - regular and consistent
Petrotrade Inc v Texaco
5 times over 13 months - regular and consistent
George Mitchell v FInney Lock Seeds
Clause will be interpreted on the natural and ordinary meaning of its words
Andrew Brothers v Singer Cars
If the clause is ambiguous in any way, the court will interpret contra proferentem
Houghton v Trafalgar Insurance
Contra proferentem interpretation of the word ‘capacity’
Canada Steamship
Test for excluding negligence
1) Does the clause specifically mention negligence or use a close synonym?
2) if no - is it wide enough to cover negligence?
3) is the clause able to exclude other liabilities (breach of contract) as well as negligence? - if yes, will not include negligence
Monarch Airlines v London Luton Airport
‘Any act or omission, neglect or default’ = synonym for negligence
Alderslade v Hendon Laundry
Took in handkerchiefs to be laundered and consequently lost them - only explanation was negligence (stolen or lost) - exclusion clause allowed (not liable for loss or damage howsoever caused)
