Exemption Clauses

Question 1

Where a document containing contractual terms is signed, without misrepresentation, it is binding, even if not read

Answer 1

L’Estrange v Graucob

Question 2

If a party has orally misrepresented a clause to the party it will not be binding

Answer 2

Curtis v Chemical Cleaning

Question 3

A signature will not incorporate an exemption clause if the document signed does not have contractual effect

Answer 3

Grogan v Robin Meredith Plant Hire

Question 4

Party relying on exemption clause need only show that he took reasonable steps to bring it to the notice of the other party

Answer 4

Parker v South Eastern Railway - ‘see back’

Question 5

Exemption clause incorporated by notice (see back) bound an illiterate man

Answer 5

Thompson v LMS Railway

Question 6

Where document doesn’t have clear words on face on it, directing attention to exemption clause, it is unlikely to be incorporated

Answer 6

Henderson v Stevenson

Question 7

If clause render illegible, it is unlikely to be incorporated

Answer 7

Sugar v LMS Railway

Question 8

Higher degree of notice required for onerous/unexpected clauses

Answer 8

Thornton v Shoe Lane Parking
Interfoto v Stiletto
Spurling v Bradshaw - big red hand

Question 9

Incorporation by course of dealing

Answer 9

McCutcheon v MacBrayne - consistent
Hollier v Rambler Motors - regular
Harry Kendal v William Lillico

Question 10

Notice must be given before or at time of contracting

Answer 10

Olley v Marlborough Court

Thornton v Shoe Lane Parking

Question 11

Exemption clause will not be incorporated in document does not have contractual force

Answer 11

Chapelton v Barry Urban DC

Question 12

Exemption clauses construed contra proferentem

Answer 12

Andrew Brothers v Singer

Question 13

Contra proferentem applied less vigorously when clause only limits liability

Answer 13

Aisla Craig Fishing

Question 14

Exclusion of liability for negligence

Answer 14

Canada Steamship:
Does clause expressly mention negligence or synonym?
Are words wide enough?
Are words too wide?

Question 15

Synonym of negligence

Answer 15

Monarch Airlines v London Luton

Question 16

There was an alternative head of liability under s14(2) - exemption clause ineffective against negligence

Answer 16

White v John Warwick

Question 17

Negligence was the only head of liability - exclusion clause effective against negligence

Answer 17

Alderslade v Hendon Laundry

Question 18

Parties can exclude liability for a fundamental breach, so long as the clause can be construed as covering it and complies with statute/regulations

Answer 18

Photo Productions v Securicor

Question 19

Third parties cannot benefit from exemption clauses as they do not have privity of contract

Answer 19

The Eurymedon

Question 20

Question of reasonableness at judges discretion; little precedent value

Answer 20

George Mitchell v Finney Lock

Question 21

The greater the equality of bargaining power, the more likely the exemption clause will be reasonable

Answer 21

Watford Electronics v Sanderson

Question 22

“Course of business” for UCTA - Distinction between transactions fundamental to business (in ‘course of business’) and those incidental to business (only in course of business if regular)

Answer 22

R & B Customs Brokers

Question 23

Wider ambit for ‘course of business’ for s14 SGA - includes incidental sales (fisherman selling boat), only excludes private sales

Answer 23

Stevenson v Rogers

Question 24

UTCCR requirement of good faith = fair and open trading, terms expressed clearly and fully, not taking advantage of consumer’s necessity and lack of experience

Answer 24

DG of Fair Trading v First National Bank