Terms (exclusion Clauses) Flashcards

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1
Q

What is the definition of an Exclusion clause?

A

A term in a contract which prevents one party from being liable for breach of contract

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2
Q

What is the definition of a limitation clause?

A

A term in a contract that sets upper limits on liability for breach of contract

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3
Q

What is the common law controls?

A

Incorporation rules

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4
Q

Which three ways can a exclusion be incorporated into a contract ?

A

By signature , by notice , by previous dealings

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5
Q

What case represents incorporation through signatures ?

A

L’Estrange v Graucob 1930
- buyer of cigarette machine
- signed document that was not read before hand
- the contract excluded the implied term of satisfactory quality
- although not read it was still binding

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6
Q

What is the main exception to the incorporation by signature?

A

If mislead or lied to this rule will not apply

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7
Q

What was the exception made by lord denning on the matter of signatures ?

A

Lord denning Red Hand Rule
- all exclusions should be made aware and clear in the contract

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8
Q

Curtis v chemical cleaning

A

C took a wedding dress to be cleaned.
She signed a document + was told they wanted to exclude liability for damage to beads and sequins
- she signed as she had no beads or sequins
- it came out with a stain
- they had lied to her (this created the exception)

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9
Q

What does incorporation by notice create the rule of?

A

Before acceptance was the term brought to the attention of the person who would suffer from this term

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10
Q

Which case illustrated the rule of the exclusion being brought to attention before a contract being made

A

Olley v Marlborough court
Cs checked into the hotel. A notice on the back of their door “no liability for property lost or stolen”
- held: the c did not agree to it as the contract was made before the exclude was made aware

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11
Q

Which three cases show the uncertainty about incorporating by notice ?

A

Chapelton v Barry urban district council
- deck chairs for hire / no exclusion on sign
- not incorporated due to the ticket not being a contractual document
Thompson
- the woman was illiterate
- held was incorporated/ reasonable person would have been aware the ticket notice
Thornton
- was not incorporated because the ticket was issued after the payment and the full term was only display inside the car park

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12
Q

What is incorporation by a previous course of dealing ?

A

It only applies to an exclusion clause if there has been a consistent course of dealing’ on the same term

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13
Q

Which case used incorporation by previous dealings?

A

McCutcheon v MacBrayne
C had used these ferries often; some times but not all ways
- relative took the car this time and got a ticket
- he didn’t read it nor sign it
- ferry sank and destroyed car
Held : not consistent action to be able to assume claimant knew the exclusion

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14
Q

What is the contra proferentem rule ?

A

A term should be interpreted least favourably against the person who introduced it

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15
Q

Which case adds an exception to the contra proferentem rule?

A

Transocean drilling v providence
This rule should only be used for terms in a contract if they are one sided or ambiguous

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16
Q

What are the two statues under statutory control?

A

UCTA - unfair contract terms act 1977
CRA - consumer rights act 2015

17
Q

What section are there in UCTA?

A

S2.1
S2.2
S3
S6
S11

18
Q

S2.1

A

States that a business cannot exclude liability for negligently causing death or personal injury

19
Q

S2.2

A

Business cannot exclude liability for other forms of loss or damage due to negligence unless it is reasonable to do
so

20
Q

S6.1

A

Business can never exclude the implied term that the seller has the right to sell. Implied term come from supply of good + services act 1982

21
Q

S3

A

Non negotiated terms must be reasonable

22
Q

S11

A

Gives guidelines on what is meant by reasonable

23
Q

What are the guidelines on s11

A
  • Burden of proof : the party who is trying to exclude liability has the burden of proving that the term is reasonable
  • the knowledge test: was the term ‘reasonable’ in light of what the parties knew at the time
  • exclusion of implied terms: if a business tries to exclude implied terms the court must decide if reasonable by looking at 5 factors
24
Q

S11.2 exclusion of implied terms : factors

A
  • inducements
  • knowledge
  • relative bargaining strength
  • special order goods
  • likelihood of compliance with terms excluded
25
Q

S11.4 limitation clauses

A

Try to limit the extent of Ds liability if the contract is breached

26
Q

What classes as reasonable with in limitation clauses act?

A
  • D reasonably would not have sufficient resources to pay the full amount
  • it would. It have been possible for D to arrange insurance to cover the cost of any claim
27
Q

Consumer rights act 2015

A

S49
S51
S62
Fairness test
Grey list

28
Q

S62

A

All other terms in consumer contracts must be fair
UNFAIR - those which put the consumer at a disadvantage by limiting the consumer rights or increasing their obligations compared to traders
MAIN SUBJECT MATTER - must be transparent (plain legible language) AND prominent (brought to consumers attention)

29
Q

S49

A

Services to be performed with reasonable care + skill

30
Q

S51

A

Reasonable price