Revision Book Flashcards
How can an exclusion clause be valid at common law?
It must satisfy three tests:
It must be a term if the contract (the clause must be incorporated into it)
It must cover the damage that was caused
It must be reasonable
How are exclusion clauses incorporated into contractual terms?
By signature
By notice
On a ticket
Previous dealings
How is incorporation by signature effective?
If the document containing the contractual terms is signed, regardless of whether they have been read or understood (L’Estrange). It is only invalidated if there is a misrepresentation as to the effect of the clause (Curtis - wedding dress).
How do you incorporate exclusion clauses by notice?
It must be introduced before or at the time of the contract (Olley - fur coat in hotel) and the party subject to the clause must be made aware of its existence before or at the time the contract was formed (Parker - not made aware, luggage stolen, ticket).
In order to bring an exclusion clause to the attention of the party to whom it effects reasonable steps must be taken. What is reasonable?
It is a question of objective fact (Thompson - actual notice is not required, just reasonable).
How do you include exclusion clauses on a ticket?
The clause will only be incorporated if it is on a document which might reasonably be considered to contain contractual terms (Chapelton - deck chair) and it has been brought to the attention of the other party (Thornton - cat park).
How do you incorporate exclusion clauses by reference to another document?
If reference is made to another document containing an exemption clause before the contract is made, the claimants attention must still be drawn to the clause itself (Dilon - cruise ship sank).
How do you include exclusion clauses by previous course of dealings?
This is an exception to the need for sufficient notice if there have been previous dealings with the parties (J Spurling - orange juice, dealt with for years and therefore bound by the terms) as long as it was consistent, if not they can not rely on the clause (McCutcheon - car on ferry, risk sometimes signed).
If a clause has been incorporated into the contract, it is then necessary to show that the clause covers the breach that has occurred. How is this done?
The contract as a whole will be considered, meaning it is possible that an exclusion clause may still fail. We must look at the contra proferentem rule and whether it was a fundamental breach.
What is the contra preferentem rule?
Any ambiguity in the wording of a clause will be construed against the party trying to rely on it (Houghton - excess load in car meaning weight not passengers).
What if an exclusion clause attempts to exclude liability in negligence?
It must reach a very high standard of clarity and precision to be held to cover the breach that has occurred (Hollier - car set on fire by faulty electrics in garage. It should have stated it would not be liable for its own negligence, the clause was too general).
What is a fundamental breach in exclusion clauses?
Where the clause does cover the breach, the courts do not allow an exclusion clause to protect a party from liability of a fundamental breach (Photo Production - lit fire in factory while on patrol, clear and unambiguous therefore could rely on it).
How does legislation control the operation of exclusion clauses?
Through the unfair contract terms act 1977 which limits what can be avoided for breach of oho tract, negligence or other breach of duty.
Who does UCTA apply to?
Dealings done in the course of a business not private transactions (s1(3)).
What are the exceptions to UCTA not applying to private transactions?
Implied terms in sale of goods and hire purchase contracts (UCTA, s6)
Implied terms in supply of goods and service contracts (UCTA, s7)
Misrepresentation (UCTA, s8)