Unfair Contract Terms

Question 0

Chapelton v Barry UDC [1940] 1 KB 532

Answer 0

Ticket given as a receipt with a deck chair was not reasonable notice as it was not a document which was reasonable to expect contractual terms on

Question 1

L’Estrange v Graucob [1934] 2 KB 394

Answer 1

The claimant could not succeed as she signed a document without fraud or misrepresentation. Not reading terms is not sufficient to not be bound by them.
There may be some scope to challenge this is modern times due to small print and hard to read terms.

Question 2

Thompson v London, Midland, & Scottish Railway [1930] 1 KB 41

Answer 2

Railway excursion ticket saying “see back” where it detailed the ticket was subject to the conditions on the company’s timetable. The Court of Appeal held that exclusion clauses may be contained as a reference to another document. It is not clear if this will be followed today.

Question 3

UCTA 1977 section 11(5)

Answer 3

Reasonableness test:
Fair and reasonable having regard for all the circumstances: known by the parties (subjective) or ought reasonable to have been known at the time of contemplation (objective) section 11(1)
Restricted liability can have regard for the party’s resources section 11(4)(a) and the availability of insurance section 11(4)(b)

Question 4

UCTA 1977 schedule 2

Answer 4

The courts must have regard for:

• the strength of bargaining positions (a)
• inducement to customer (b)
• notice of term, course of dealing, usage of trade (c)
• special order of customer

Question 5

R&B Customer Brokers v Unites Dominions Trust [1988] 1 All ER 847

Answer 5

Wide definition of UCTA 1977 s12(1) of consumer, a business was defined as a consumer where they were purchasing out of the course of their business

Question 6

Stewart Gill v Horatio Myer [1992] 1 QB 600

Answer 6

Wide definition given to UCTA 1977 s13 “exemption clause”, adoption of a liberal approach

Question 7

Olley v Malborough Court Ltd [1949] 1 KB 532

Answer 7

An exclusion of liability notice was available in the hotel room which was not sufficient notice as the bedroom was viewed after the contract was made

Question 8

Thornton v Shoe Lane Parking [1971] 2 QB 163

Answer 8

Where a term is very onerous or unusual then better notice must be given
“The clause is so wide and so destructive that of rights that the court should not hold any man bound by it unless it is drawn to his attention in the most explicit way” Lord Denning

Question 9

Interfoto v Stiletto Visual Programmes [1988] 1 All ER 430

Answer 9

Unusual term so more needed to be done to bring it to notice

Question 10

Houghton v Trafalgar Insurance [1954] 1 QB 247

Answer 10

A strict interpretation of construction where ambiguity was solved against the party seeking to rely on it. Car containing more than 5 passengers was said not to be carrying “any load” in excess for that which it was built.

Question 11

Canada Steamship Lines v The King [1952] AC 192

Answer 11

Details the approach of the courts regarding negligent breach of contract.

1. If the contract expressly removes liability for negligence then effect must be given to that provision
2. Implied meanings
3. If there can be a cause of action in a different means that the defendant clearly didn’t mean to protect against then this will be followed

Question 12

Hollier v Rambler Motors [1972] 1 All ER 399

Answer 12

Having previously signed a form twice removing liability when using the garage was insufficient for a course of dealings as to incorporate it

Question 13

White v John Warwick [1953] 2 All ER 1021

Answer 13

Negligent liability must be explicitly removed. A term such as “nothing in this agreement shall render the owners liable for any personal injuries” covers both strict and negligent liability so can only apply to strict liability.

Question 14

Curtis v Chemical Cleaning & Dying Co [1951] 1 KB 805 (CA)

Answer 14

Misrepresented the document so the exclusion clause did not apply