lecture 5

Question 1

parol evidence rule

Answer 1

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

Question 2

Henderson v Arthur

Answer 2

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

Question 3

exceptions to the parol evidence rule

Answer 3

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

Question 4

entire agreement clause

Answer 4

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

Question 5

No oral modification clauses

Answer 5

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

Question 6

MWB v Rock

Answer 6

UKSC held that a NOM clause was enforceable, and this made unenforceable the parties later oral agreement to reschedule the defendants debt.

Question 7

exemption clauses

Answer 7

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

Question 8

common law control of exemption clauses

Answer 8

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

Question 9

legislative control over unfair terms

Answer 9

Unfair contract terms act 1977
consumer rights act 2015

Question 10

legislation applicable to specific types of contract

Answer 10

employment rights act 1996
consumer credit act 2006
leasehold and freehold reform act 2024

Question 11

contra preferrenum principle

Answer 11

any ambiguity is to be resolved against the party who introduced the clause

Question 12

limits to contra preferentem

Answer 12

courts have stressed that the principle has a limited role to play in commercial contracts

Question 13

exclusion of negligence liability (steamship guidelines)

Answer 13

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

Question 14

UCTA

Answer 14

Unfair contract terms act

Question 15

CRA

Answer 15

Consumer rights act

Question 16

similarities of UCTA and CRA

Answer 16

1. Both invalidate certain terms outright
2. Both subject certain terms to review
3. Both apply to an open ended class of contract

Question 17

differences of UCTA and CRA

Answer 17

1. UCTA only applies to B2B contracts, CRA only applies to B2C contracts
2. UCTA applies only to exemption clauses and clauses that cut down the parties duties, CRA makes any clause renewable
3. Different origins
4. CRA allows for pre-emptive enforcement

Question 18

UCTA s2

Answer 18

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

Question 19

UCTA s6 and 7

Answer 19

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

Question 20

UCTA s13

Answer 20

an attempt to define the responsiblity a person is undertaking is often similar to an attempt to exclude liability for breach

Question 21

RBO v RBS - using s13

Answer 21

there is an attempt to exclude duty for s13 only if “clause attempts to rewrite history”

Question 22

Yuanda Co v WW Gear Construction

Answer 22

defines standard terms, if a party uses them for nearly all of its contracts of a particular type without alteration

Question 23

s3(2)b

Answer 23

party cannot rely on a term allowing it to render a “contractual performance substantially different” from it was reasonably expected

Question 24

the Schedule 2 factors

Answer 24

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

Question 25

Bates v Post Office

Answer 25

failed test of reasonableness, “not remotely equal” parties, “onerous and unusual” clauses

Question 26

Monetary Limits s 11(4)

Answer 26

“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”

Question 27

CRA 2015: mechanisms of control

Answer 27

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