Unfair Contract Terms Act 1977 Flashcards
UCTA applies to…
b2b
UCTA only regulates…
exemption clauses
How is negligence defined in UCTA + what does it includes breach of:
(a) Any obligation, arising from express/ implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract;
(b) Any common law duty to take reasonable care or exercise reasonable skill
Can a person attempt to exclude/ restrict liability for death or personal injury resulting from negligence?
No, it will be void
Can a person exclude/ restrict his liability to loss or damage resulting from negligence?
Only as far as the term/ notice satisfies the requirement of reasonableness
How does exempting liability for breach of statutory implied terms about quality of goods go?
Cannot be excluded/ restricted by reference to a contract term except in so far as the term satisfies the requirement of reasonableness.
How can a party exempt liability arising in contract?
the term must pass the reasonableness test if a party wishes to rely on it to exclude its liability in event of breach of contract
a party cannot by reference any contract term claim to be entitled to….
- render a contractual performance substantially different from that which was reasonably expected; or
- Claim to be entitled in respect of the whole/ any part of the contractual obligation, to render no performance at all
Except in so far as the contract term satisfies the requirement of reasonableness.
exclusions / limitations of liability for breach of contract in individually negotiated b2b contracts are NOT regulated under UCTA UNLESS..
they relate to other areas which ARE regulated of UCTA, such as attempts to limit liability for death or personal injury caused by negligence.
How can the term pass the UCTA reasonableness test: the term….
“… shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties WHEN the CONTRACT WAS MADE.”
What are the 5 factors when deciding whether a term is ‘fair and reasonable’ under UCTA
(a) strength of bargaining positions of parties relative to each other, taking into account alternative means by which the customer’s requirements could have been met;
(b) whether customer received an inducement to agree to the term/ in accepting it had an opportunity of entering into a similar contract with other persons, but without having a similar term;
(c) whether customer knew/ ought reasonably to have known of the existence + extent of the term;
(d) where the term excludes/ restricts any relevant liability if some condition was not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;
(e) whether the goods were manufactured, processed or adapted to the special order of the customer.
