Terms: Exclusion Clauses Flashcards
3 ways to control exclusion clauses
- Has it been incorporated
- Contra proferentum rule
- Clause not effective under statute
Thornton v Shoe Lane Parking
General rule: more onerous the exclusion, clearer it has to be
L’Estrange v Graucob
If written in contract and signed
Incorporated even if not read/understood
Interfoto v Stilletto
Exception for L’Estrange:
If signed unusual/onerous terms may not be incorporated without specific attention drawn to them
Grogan v Robin Meredith
L’Estrange exception:
Signing non contractual document will not automatically incorporate terms
Curtis v Chemical Cleaning
L’Estrange exception:
Oral statements overrule signed contracts
Chappelton v BUDC
Written notices/tickets:
If I do not clear enough, won’t be incorporated
Parker v SE Railway
Written notice/ticket:
When clear enough, will be incorporated
O’Brien v MGN
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Hollier v Rambler Motors
When there is not regular course of dealings, unlikely they are aware of exclusion
Spurling v Bradshaw
When there is regular course of dealings, it’s likely they are aware of exclusion
S62 CRA
If term considered unfair exclusion will not apply
Unfair based on:
- causing significant imbalance in parties’ rights and obligations under the contract to the detriment of the consumer
S65 CRA
Can never exclude death/injury by negligence
S31 CRA
Cannot exclude implied rights to goods
S57 CRA
Cannot exclude implied rights to services
S2(1) UCTA 1977
Businesses cannot exclude liability for causing death/injury by negligence
S2(2) UCTA
Businesses can exclude liability for causing property damage by negligence
as long as reasonable
S3 UCTA
Can exclude liability for breach of contract
As long as reasonable
S6 UCTA
Can exclude implied terms about goods
As long as reasonable
S7 UCTA
Can exclude implied terms about services
As long as reasonable
S11(1) UCTA
Can use knowledge test to see what’s reasonable for all but S6&7
Term must have been reasonable based on what was known to parties at the time of making the contract
S11(2) UCTA
Guidelines to reasonableness for implied goods/services found in Schedule 2
Schedule 2
a)
Look at strength of bargaining power when deciding if reasonable
Schedule 2
b)
Look at whether they received inducement to agree to the exclusion when deciding if reasonable
(If they were induced, more reasonable the exclusion as the other party gained from it)
Schedule 2
c)
Look at whether C knew or should have reasonably known of exclusion to decide whether unreasonable
(If hidden/unclear less likely to be reasonable)
Schedule 2
d)
Whether goods made to specific order of the customer
Customised goods may have lower quality
Schedule 2
e)
Look at whether liability accepted only if certain conditions applied with to decide if reasonable
S11(4) UCTA
Limitation clauses (limiting £ they can be liable for) may be unreasonable based on resources and availability for insurance
