Terms that limit or exclude liability Flashcards
CCLA - S50 Statement, promise, or undertaking during negotiations
his section addresses provisions in contracts that attempt to prevent a court from determining whether a statement, promise, or undertaking was made during negotiations, whether it constituted a representation or term of the contract, and whether it was relied upon.
The court can still investigate these questions unless it finds it fair and reasonable for the provision to be conclusive between the parties, considering specific circumstances.
Relevant factors include:
The subject matter and value of the transaction.
The bargaining strengths of the parties.
Whether any party had legal representation or advice during negotiations or at any relevant time.
Fair Trading Act 1986 [5C
No contracting out: general rule
Act’s Supremacy: This Act prevails over conflicting agreements.
Unenforceability: Attempts to override the Act are unenforceable.
Exceptions:
Stricter supplier duties are allowed.
More advantageous remedies for consumers are permitted.
Definition: “Agreement” includes any contract or arrangement.
Fair Trading Act 1986 5D - No contracting out: exception for parties in trade
The provisions of this Act apply despite any conflicting agreement. Any provision that overrides these provisions is unenforceable, except if it imposes a stricter duty or offers a more advantageous remedy.
Fair Trading Act 1986 S9 - Misleading and deceptive conduct generally
No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
consumer guarantees act s 43
the provisions of this Act apply despite any conflicting agreement unless:
- The agreement is written.
- The goods/services are supplied and acquired in trade.
- All parties to the agreement are in trade and agree to contract out of the Act’s provisions.
- It is fair and reasonable for the parties to be bound by this exclusion.
