Express Terms, Limitation & Exclusion Clauses Flashcards
- The assumption in contract law is that each party understands the terms they are agreeing to. A dispute arises when one party argues…
The assumption in contract law is that each party understands the terms they are agreeing to.
A dispute arises when one party argues the term of the contract has one meaning and the other party disagrees.
In a situation such as this, a process called “interpretation of contract” occurs, where the meaning of the terms is considered.
- An Exclusion Clause Excludes…
A Limitation Clause Sets an…
An Exclusion Clause excludes the Liability of one party for Breach of Contract.
A Limitation Clause sets an Upper Limit on Liability rather than Excluding Liability.
- There are common law and statute law controls.
The main common law control is…
There are common law and statute law controls.
The main common law control is that the terms must be INCORPORATED into the contract.
- Terms must usually be made available…
Terms must usually be made available when the contract is made, before acceptance (Thornton v Shoe Lane Parking)
- Signing a contractual document…
[IF RELEVANT:] Signing a contractual document incorporates terms contadined within it even if they have not been read (L’Estrange v Graucob).
A delivery note is not a contractual document, but an order form is.
- Terms may be incorporated by previous…
[IF RELEVANT:] Terms may be incorporated by previous dealings/custom if they are regular dealings (Kendal v Lillico).
- Tickets or Receipts may incorporate terms if it is…
[IF RELEVANT:] Tickets or Receipts may incorporate terms if it is reasonable to expect them on the back (Chapelton v Barry, Thompson v LMS Railway).
- Terms may be incorporated if clearly…
[IF RELEVANT:] Terms may be incorporated if clearly on display eg. In a car park, or clearly referred to when given an unsigned document when the contract is made (Olley v Marlborough Court Hotel).
- Very Harsh or Unusual Terms must have…
[IF RELEVANT:] Very harsh or unusual terms must have special notice ie made prominent in order to be incorporated (Interfoto v Stilleto).
Here…(Apply Everything Here)
- A Second Common Law Control is that under the…
For Consumer Contracts, this is stated in…
It prevents terms being given a wide meaning (White v John Warwick).
Here…
A Second Common Law Control is that under the ‘contra proferentem rule’, an ambiguous/unclear AND one sided term will be construed against the party that put it in the contract, as in Transocean Drilling v Providence.
For consumer contracts, this is stated in S69 of the Consumer Rights Act 2015.
It prevents terms being given a wide meaning (White v John Warwick).
Here…
- There are also special rules for the exclusion of negligence liability under…
Here…
[Only discuss if there is something to say]
There are also special rules for the Exclusion of Negligence Liability under Common Law (Shell v P&O Roadtankers), where it was stated that phrases such as:
“loss whatsoever” or “however occasioned” will not cover an exclusion clause for negligence
Here [eg. As the sign in the carpark stated that the company would not be liable for damage to cars on the carpark “however occasioned”, they will not be able to rely on the term.]
- IF the clause is incorporated into the contract under common law, statute law provides further protection:
IF RELEVANT: Firstly the Consumer Rights Act 2015 relates to ‘consumer’ contracts.
Section 31 of the Act bars…
IF the clause is incorporated into the contract under common law, statute law provides further protection.
Firstly, the Consumer Rights Act 2015 relates to ‘consumer’ contracts.
Section 31 of the Act bars exclusion and limitation clauses concerning the consumer’s rights of goods relating to ‘satisfactory quality’, ‘fit for a particular purpose’ and ‘description’, plus the consumer’s right relating to services to be performed with ‘reasonable care and skill’.
- Section 65 bars any clause excluding liability for…
Section 65 bars any clause excluding liability for death or personal injury caused by negligence
- Section 62 sets out a fairness test, which relates to all terms apart from
Schedule 2 provides a ‘grey list’ of examples of…
Under s62(4) a term is unfair if it causes a significant imbalance…
However, it is key to note the decision in…
Section 62 sets out a fairness test, which relates to all terms apart from ‘prominent’ terms relating to the price, and Schedule 2 provides a ‘grey list’ of examples of unfair clauses, such as those which allow an unequal balance of power between consumer and trader.
Under S62(4) a term is unfair if it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
However, it is key to note the decision in ParkingEye v Beavis, where the court considered an £85 charge for overstaying two hours an acceptable amount.
Here…
- Secondly, the Unfair Contract Terms Act 1977 relates to ‘business to business’
Under Section 2(1) a clause excluding liability for…
[IF RELEVANT]
Secondly, the Unfair Contract Terms Act 1977 relates to ‘business to business’ contracts.
The Act makes some contract terms VOID and some contract terms subject to a REASONABLENESS TEST.
[Discuss relevant sections]
Under Section 2(1) a clause excluding liability for death or personal injury caused by negligence is void.
