Exemption Clauses Flashcards
What are exemption clauses?
Clauses in a contract where one party intends to exclude or limit liability to the other party for failure to perform or defective performance
What are the three tests a clause has to satisfy to be valid?
It must be incorporated in the contract
It must cover the damage that was caused by construction
It must be reasonable under UCTA
What is in place to regulate exemption clauses?
UCTA 1977
What is the Consumer Rights Act?
General consumer protection regime for controlling unfair terms
How are exemption clauses examined?
Consider first whether the defendant would be liable in the absence of the clause, then consider it’s impact
How must a clause be written?
Words must be clear and free of ambiguity
What does contra proferentem mean?
Ambiguous clauses will be construed against person trying to rely on it
Examples of words used to exclude negligence liability?
Negligence
Lack of care
However so caused
When does UCTA have no effect?
When a clause in a negotiated contract excludes liability for breach of an express term
S.2(1) UCTA?
A clause which excludes liability of negligence which causes death or personal injury is automatically ineffective
S11 UCTA?
Reasonableness test
- Term shall have been a fair and reasonable one to include, regarding the circumstances
S2 UCTA?
Exempting liability for negligence causing loss/damages
S3 UCTA?
Exempting liability for breach of an express term in a written contract
S6 & 7 UCTA?
Exempting liability for statutory implied terms relating to goods
Schedule 2 UCTA?
- bargaining position of the parties
- any inducement to agree to the clause?
- extent to which the customer knew or ought to have known of clause
- where exemption clause is due to a condition being breached, is it reasonable to expect compliance with condition?
- bespoke goods
