Statutory controls of exclusion clauses Flashcards
What are the 2 acts used for exclusion clauses?
Unfair Contract terms Act 1977
Consumer rights act 2015
What is the unfair contract terms act used for?
Non-consumer contracts (business to business)
Reasonableness test
What does S.2(1) of the UCT Act say?
A person cannot exclude liability for death or personal injury caused by negligence
What does S.2(2) of the UCT Act say?
In cases of loss or damage, a person cannot exclude liability for negligence unless reasonable to do so
What does S.6(1) of the UCT Act say?
Clause cannot be put in contract meaning elements of act cannot apply
What does S.3 of the UCT Act say?
Reasonableness test
What does S.11(5) of the UCT Act say?
Guidelines confirm what is reasonable
Party who inserts the clause must show its reasonable in the circumstances
What does S.11(1) of the UCT Act say?
Knowledge test- must be reasonable in light of what the parties were aware of at the time
What is the case for the knowledge test?
Smith v Eric Bush
What does S.11(2) of the UCT Act say?
Factors to be considered
What are the 5 factors to be considered?
Bargaining strength/ power- one party in better position than another
Customer given inducement to accept term
Customer knew or ought to have known the term
Where exclusion relates to non performance of a condition whether it was reasonably practicable to comply
Whether the goods were made or adapted to the special order of the customer
What is there case for factors to be considered?
Watford v Sanderson
What does S.11(4) of the UCT Act say?
Limitation clauses
What are the 2 criteria for limitation clauses?
Resources which D could expect to be available for setting his liability should it arise
How far it was open to D to cover himself by insurance against a successful claim
What is the case for limitation clauses?
George Mitchell v Finney Lock Seeds
