lecture 5 Flashcards
parol evidence rule
rule that where a written document purports to record all the terms of the parties agreement, no evidence can be adduced to vary/contradict it
Henderson v Arthur
tenant could not adduce evidence of an alleged prior agreement to accept IOUs for rent when the deed of the lease required rent to be paid in cash
exceptions to the parol evidence rule
does not apply when:
1. the contract is partly in writing and partly oral
2. the oral promise can be treated as giving rise to a collateral contract
entire agreement clause
prevents collateral agreements arising out of precontractual assurances but do not prevent:
parties adducing extrinsic evidence going to interpretation
do not prevent claims in misrepresentation unless the wording excludes this in clear terms
No oral modification clauses
parties cannot give up the normal power that everyone has to enter into an oral contract by agreeing that no amendment can be made to the written contract unless it is made in writing
MWB v Rock
UKSC held that a NOM clause was enforceable, and this made unenforceable the parties later oral agreement to reschedule the defendants debt.
exemption clauses
a contract term that relieves a part of some/all of their liability in the event of their breach contract, committing a tort of breaching some other duty
common law control of exemption clauses
judge made rules make it harder to rely on exemption clauses:
rules on incorporation of unsigned notices
contra preferetu rule
strict interpretation of the clause
legislative control over unfair terms
Unfair contract terms act 1977
consumer rights act 2015
legislation applicable to specific types of contract
employment rights act 1996
consumer credit act 2006
leasehold and freehold reform act 2024
contra preferrenum principle
any ambiguity is to be resolved against the party who introduced the clause
limits to contra preferentem
courts have stressed that the principle has a limited role to play in commercial contracts
exclusion of negligence liability (steamship guidelines)
a clause will only be effective to exclude liability for negligence if:
the clause expressly exempts “negligence” (or a clear synonym)
OR the words are wide enough to cover negligence and there is no other ground of liability
UCTA
Unfair contract terms act
CRA
Consumer rights act
similarities of UCTA and CRA
- Both invalidate certain terms outright
- Both subject certain terms to review
- Both apply to an open ended class of contract
differences of UCTA and CRA
- UCTA only applies to B2B contracts, CRA only applies to B2C contracts
- UCTA applies only to exemption clauses and clauses that cut down the parties duties, CRA makes any clause renewable
- Different origins
- CRA allows for pre-emptive enforcement
UCTA s2
a person cannot be reference to any contract term or to a notice…exclude or restrict his liability for death or personal injury from negligence
UCTA s6 and 7
absolutely invalidate any term which exempts liability for implied terms as to title; and make exclusions of liability for breach of other implied terms in sale of goods
UCTA s13
an attempt to define the responsiblity a person is undertaking is often similar to an attempt to exclude liability for breach
RBO v RBS - using s13
there is an attempt to exclude duty for s13 only if “clause attempts to rewrite history”
Yuanda Co v WW Gear Construction
defines standard terms, if a party uses them for nearly all of its contracts of a particular type without alteration
s3(2)b
party cannot rely on a term allowing it to render a “contractual performance substantially different” from it was reasonably expected
the Schedule 2 factors
strength of bargaining positions of the parties relative to each other
had an opportunity to enter into similar contract with another person without term
customer knew or ought to have known the existence and extent
compliance with that condition would be practicable
special order of the customer
Bates v Post Office
failed test of reasonableness, “not remotely equal” parties, “onerous and unusual” clauses
Monetary Limits s 11(4)
“where… a person seeks to restrict liability to a specified sum of money, and the question arises.. whether the term or notice satisfies the requirement of reasonableness”
CRA 2015: mechanisms of control
controls apply only where contract is B2C
certain terms are simply invalidated - liability for personal injury or death
liability exemptions arising out of implied terms
exemptions of liability for obligation to exercise reasonable care and skill in supplying a service