Notes Unfair Terms Common Law Flashcards
What are the most common type of unfair terms?
Exclusion clauses and penalty clauses.
What is the general rule about incorporating unfair terms?
The term must be brought to the attention of the contracting party before or at the time the contract was made, otherwise it cannot be said they accepted the term and will therefore not be part of the agreement (Chapleton v Barry: deck chair; Thornton v Shoe Lane Parking).
What happens if the unfair term was included in a signed document but never read?
They will be bound by them regardless of whether or not they were aware of the terms (L’Estrange).
What happens if you enquiry about a term and are misrepresented as to what it means?
The clause is not effective (Curtis - wedding dress, told clause was for damage to beads nothing else).
Why must the party seeking to rely on the unfair term give reasonable notice?
They need to take reasonable steps to bring it to their attention (Thompson: illiterate injured getting off train). If the clause is particularly onerous then more steps are required to bring it to their attention (Interfoto Picture).
How can terms be incorporated through previous dealings?
If they have dealt with each other before they won’t need to bring it to their attention (Spurling) however the dealings must have been consistent and contracted on the same terms (McCutcheon: car on ferry sank, sometimes sign some not) and there must be a sufficient number of transactions to class as previous dealings (Hollier: 5 times in a year was not sufficient).
How can a term be incorporated through trade custom?
Where the term is used in the trade (British Crane Hire).
What is an exclusion clause?
Where one party seeks to exclude their liability under the contract.
Does the clause cover the loss in question?
This is a matter of interpretation and the contra preferentem rule applies. Meaning if there is any ambiguity in the wording of the clause, the courts will interpret it against the party seeking to rely on it (Singer Cars). Where it is a limitation clause the courts will give it it’s natural meaning (Ailsa Craig Fishing).
