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Contract Law - UoL > Exemption Clauses > Flashcards

Exemption Clauses Flashcards

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1
Q

What is the definition of express terms?

A

Terms specifically agreed by the parties, either orally or in writing

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2
Q

Name the 5 ways terms may be implied by the courts?

A
  1. based on local custom or trade
  2. based on previous course of dealing between parties
  3. based on presumed intention of the paties
  4. due to type of contract
  5. statutory duties
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3
Q

Which case stated that courts may imply terms based on local custom or trade?

A

Hutton v Warren

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4
Q

Which case stated that courts may imply terms based on previous dealings between parties?

A

Spurling v Bradshaw

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5
Q

What is the business efficacy test?

A

EDIT

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6
Q

What is the officious bystander test?

A

EDIT

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7
Q

In what sort of contracts does the Sale of Goods Act 1979 apply?

A

Business to business
consumer to consumer
consumer to business

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8
Q

What is the effect of the Sale of Goods Act 1979 s.8?

A

In the absence of an express term, a reasonable price should be paid

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9
Q

What is the effect of the Sale of Goods Act 1979 s.13?

A

Where there is a contract for the sale of goods by description, the goods must correspond with the description.

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10
Q

What case established that s.13 of the Sale of Goods Act 1979 applies where a buyer reasonably relies on description?

A

Harlington & Leinster Enterprises

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11
Q

What case stated that s.13 of the Sale of Goods Act 1979 my still apply where the goods have been inspected?

A

Begle v Taylor

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12
Q

What is the effect of the Sale of Goods Act 1979 s.14?

A

Goods are of satisfactory quality (2)
Goods are reasonably fit for the purpose that the buyer expressly or by implication makes known to the seller (3)
Seller must be in the course of business to a commercial buyer

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13
Q

In what sort of contracts does the Supply of Goods and Services Act 1982 apply?

A

Contracts for services and for contracts for work and materials not made between trader and consumer

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14
Q

What is the effect of the Supply of Goods and Services Act 1982 s.3?

A

Where there is a contract for the sale of services or goods in service contracts relies on description, they must correspond with the description.

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15
Q

What is the effect of the Supply of Goods and Services Act 1982 s.4?

A

Services/goods are of satisfactory quality.

Services/goods are reasonably fit for the purpose that the buyer expressly or by implication makes known to the seller.

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16
Q

What is the effect of the Supply of Goods and Services Act 1982 s.13?

A

Where the supplier of a service is acting in the course of business, the supplier will carry out the service with reasonable care and skill.

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17
Q

What is the effect of the Supply of Goods and Services Act 1982 s.14?

A

In the absence of an express term, service will be carried out within a reasonable time.
Will not apply if contract includes time for carrying out service.
Only applies if contract silent on point.

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18
Q

What is the effect of the Supply of Goods and Services Act 1982 s.15?

A

In the absence of an express term, a reasonable price should be paid.

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19
Q

In what sort of contract does the Consumer Rights Act 2015 apply?

A

Contracts made between trade and consumer, whether for goods or services.

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20
Q

What is the effect of the Consumer Rights Act 2015 s.9?

A

Goods are of satisfactory quality.

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21
Q

What is the effect of the Consumer Rights Act 2015 s.10?

A

Goods are fit for purpose.

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22
Q

What is the effect of the Consumer Rights Act 2015 s.11?

A

Goods are as described.

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23
Q

What is the effect of the Consumer Rights Act 2015 s.49?

A

Service/work will be carried out with reasonable care and skill.

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24
Q

What is the effect of the Consumer Rights Act 2015 s.51?

A

Reasonable price will be paid for service/work.

Applies only where no price has otherwise been fixed

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25
Q

What is the effect of the Consumer Rights Act 2015 s.52?

A

Service/work will be performed in reasonable time.

Applies only where no time has been set.

26
Q

Name three ways exemption clause can be incorporated into the contract.

A

Signature
Notice
Course of dealings

27
Q

What is the test that an exemption clause has been incorporated by signature?

A

According to L’Estrange v Graucob Ltd:
the clause is legible and signed by C; and
document is a contractual document

28
Q

What case established that a misrepresented clause is invalid?

A

Curtis v Chemical Cleaning

29
Q

What case states tat document containing the clause must e contractual in nature for notice to apply?

A

Chapelton v Barry Urban DC

30
Q

What are the two kinds of notice?

A

Actual notice - innocent party must know of the clause; or

Constructive notice - party relying on the clause must have taken reasonable steps to bring it to the other’s notice.

31
Q

What factors determine whether steps were reasonable?

A

According to Parker v SE Railway:
position;
prominence; and
type of clause

32
Q

What case established that onerous clauses must be explicitly drawn tot eh attention of the other party?

A

Thornton v Shoe-Lane Parking; the example including red hand pointing to red ink

33
Q

What case is an example where reasonable steps were not taken to draw attention to an onerous clause?

A

Interfoto v Stiletto; clause was printed on foot of the delivery note.

34
Q

When must the reasonable steps be taken?

A

According to Olley v Marlborough before the contract, or at the time of, finalisation.

35
Q

When can course of dealings provide notice?

A

According to Spurling v Bradshaw after contract is finalised.

36
Q

What is an example of consistent timings amounted to course of dealings?

A

In Kendal v Lillico 3-4 times per month over 3 years amounted to a course of dealings

37
Q

What is an example of inconsistent timings not regarded as course of dealings?

A

In Hollier v Rambler 3-4 times in 5 years does not amount to a course of dealings

38
Q

What case is an example of inconsistent terms not amounting to course of dealings?

A

McCutheon v MacBryne; if the signin of the contract is not consistent the course of dealings are not sufficiently consistent to be reliable notice.

39
Q

What is the Contra Proferentem rule?

A

According to Houghton v Trafalgar if the clause is ambiguous or unclear, the courts will interpret it agains the party relying on it.

40
Q

Can negligence be covered by an exemption clause?

A

According to Canada Steamship the clause must clearly relate to negligence either because the clause:
expressly exempts liability for negligence; or
contains words that are wide enough to exclude liability for negligence, provided that should the wording cover liability other than negligence, the court doesn’t restrict liability to that other liability

41
Q

Can very serious breaches be covered by an exemption clause?

A

According to Photo Production v Securicor it can if the clause is clearly worded.

42
Q

What is the effect of the Unfair Contract Terms Act 1977 s.2(1)?

A

Exclusion of liability for death or personal injury by negligence is void.

43
Q

What is the effect of the Unfair Contract Terms Act 1977 s.2(2)?

A

Exclusion of liability for loss or damage to property caused by negligence is subject to reasonableness.

44
Q

What is the effect of the Unfair Contract Terms Act 1977 s.3?

A

Exclusion of liability for breach of express term is subject to reasonableness.

45
Q

What is the effect of the Unfair Contract Terms Act 1977 s.6(1)?

A

Exclusion of liability for breach of a term implied by the Sale of Goods Act 1979 s.12 is void.

46
Q

What is the effect of the Unfair Contract Terms Act 1977 s.6(2)?

A

Exclusion of liability for breach of a term implied by the Sale of Goods Act 1979 s.13-15 when dealing with business to consumer contracts are subject to reasonableness.

47
Q

What is the effect of the Unfair Contract Terms Act 1977 s.6(3)?

A

Exclusion of liability for breach of a term implied by the Sale of Goods Act 1979 s.13-15 when dealing with business to business contracts are subject to reasonableness.

48
Q

What is the effect of the Unfair Contract Terms Act 1977 s.7(3A)?

A

Exclusion of liability for breach of a term implied by the Supply of Goods and Services Act 1982 s.2 is void.

49
Q

What is the effect of the Unfair Contract Terms Act 1977 s.7(2)?

A

Exclusion of liability for breach of a term implied by the Supply of Goods and Services Act 1982 ss.3 and 4 when dealing with business to consumer contracts are subject to reasonableness.

50
Q

What is the effect of the Unfair Contract Terms Act 1977 s.7(3)?

A

Exclusion of liability for breach of a term implied by the Supply of Goods and Services Act 1982 ss.3 and 4 when dealing with business to business contracts are subject to reasonableness.

51
Q

What is the reasonableness test under s.11 of the Unfair Contract Terms Act 1977?

A

It must have been fair and reasonable to include the exemption clause having regard to circumstances that:
were know;
ought reasonably to have been known; or
were within the contemplation of the parties when the contract was made.

52
Q

What are the guidelines for exemption clauses?

A

Relative strength of the bargaining positions of the parties
Was there inducement?
Incorporation
Was it reasonable to expect that compliance with the clause would have been practical?

53
Q

Where are the guidelines for exemption clauses found?

A

Unfair Contract Terms Act 1977 Schedule 2.

54
Q

What are the guidelines for limitation clauses?

A

consider the resources that D could expect to be available to him for the purpose of meeting the liability.
could D have been covered by insurance?

55
Q

Where are the guidelines for limitation clauses found?

A

Unfair Contract Terms Act 1977 s.11(4)

56
Q

In Smith v Eric Bush what matters where considered regarding exemption clauses in case of advice?

A

Were the parties of equal bargaining power?
Would it be reasonably practical to obtain the advice from an alternative source?
How difficult is the task?
What are the practical consequences?

57
Q

In St Albans v International Computers what matters where considered regarding limitation clauses?

A

Were the parties experienced commercial bodies free to make their own bargain?
Was there awareness of limitation clause at time of contract?
Is the type of clause common for the industry in question?
Does D have ample resources to the liability?
Given D’s insurance, is the amount in the limitation clause reasonable?

58
Q

Which case established that standard industry terms are generally reasonable?

A

Schenkers v Overland Shoes

59
Q

Which case established that when considering whether a clause is reasonable the clause must be considered as a whole?

A

Stewart Gill v Horatio Myer & Co

60
Q

Which case established that if a term has separate parts, their reasonableness should be considered separately?

A

Watford Electronics v Sanderson

61
Q

Which case suggested that a clause that excludes liability for misrepresentation, could be read to include exclusion for fraudulent misrepresentation?

A

Thomas Witter v TBP

Contract Law - UoL (3 decks)

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