exemption clauses legislation Flashcards
legislation created
unfair contract terms act 1977
consumer rights act 2015
what does the unfair contract terms act deal with
exeption clauses
business to business scenarios
if clause falls within this act it could be
automatically ineffective (cannot exclude for phsyical injury or death)
subject to the requirement of reasonableness
2 part test to test a term under this act
use active sections- says what happens to the clause
definition sections- tells us what the test for reasonableness is
how to use UCTA
- find active section which applies
- Find guidance in the definition scetions to help explain that section
active section 2 (negligence):
cannot exclude liability for death or serious injury
can exclude for other negligence if it satisfys the test of reasonableness
active section 3 (excluding for a breach of contract):
can use terms to limit liability only if it is satisfied by the test of reasonableness
timeload v BT- sc3 applied regarding phone numbers
reasonableness: terms must be writtern standard terms (term is so frequently used to be considered standard, Chester grosvenor hotel v Alfred management)
active section 6 (sale and hire purchase):
covers exclusion of sale of goods act implied terms
can exclude implied terms from the sales of goods act if they satisfy the test if reasonablesness
sc7- implied terms in miscellanrous contracts
active section 13 (exclusion clauses indisguised):
captures exclusion clauses in disguised
test- but for the term would an obligation arise, if yes legislation applies (sc3)
smith v bush- but for clause was an exception clause and subject to sc3
the requirement of reasonabless sc11:
defines the test-
was it a fair and reasonable clause to include at the time the contract was made with the knowledge of the parties?
the requirment of reasonablessness schedule 2:
list of matters which needed to be regarded when asessing the reasonableness
1. strength of bargaining powers of parties
2. is the clause common place in the industry
3. does the clause allocate risk betweem the parties appropriately
case for schedule 2
smith v bush- negligent surveyer for property, attempt to limit liability, unequal bargaining power and significant risk and cost of liability so unreasonable
active section 3(b)
the othe party cannont make reference to a clause claiming to be entitiled to
a. render the contractual perfromance substantailly different from which was expected
b.to render to performance at all
sun life services v campbell martin- changed ship, destinationa nd itinerary
case for section 11 reasonableness test
philips v hyland- condition failed the reasonableness test as the c did not generally hired JCB excavators, the hire was for a short period of time and no opportunity for c to get insurance
