Term
| Validity of exclusion clauses |
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Definition
There are three hurdles that an exclusion clause must jump before being considered valid:
- Incorporation into the contract
- Does it cover the damage suffered?
- Does it fall within the scope of statutory controls? |
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Term
| Incorporation - signature |
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Definition
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Term
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Definition
- Notice to be given before or at time of formation (Olley v Marlborough Court Hotel)
- Notice given must be reasonable (Parker v South Eastern Railways) |
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Term
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Definition
Chapelton v Barry UDC
A clause will not be incorporated is it is not on a document which might reasonably be thought to contain contractual terms. |
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Term
| Incorporation - reference to another document |
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Definition
The Mikhail Lermentov
Where reference is made to another document, C's attention must still be brought to the clause itself. |
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Term
| Incorporation - previous dealings |
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Definition
J Spurling Ltd v Bradshaw
Exception to the general rule of required notice may be taken where there has been a previous course of dealings between the parties |
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Term
| Construction - contra proferentum |
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Definition
Houghton v Trafalgar Insurance Ltd
An exclusion clause will be interpreted against the user, so any doubt in the wording of the clause will work against him. |
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Term
| Construction - Negligence |
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Definition
Hollier v Rambler Motors
An exclusion clause must satisfy a very high standard of clarity and precision in order to exclude liability in negligence |
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Term
| Statutory control - UCTA: Scope |
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Definition
UCTA covers breach of obligations arising:
(a) from things done in the course of a business, or;
(b) from the occupation of premises for the occupiers business use.
(s 1(3) UCTA) |
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Term
| Statutory control - UCTA: Negligence |
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Definition
s2(1): Liability for death or personal injury arising from negligence may not be excluded.
s2(2) Liability for loss other than death or personal injury may be excluded so long as the term satisfies the reasonableness test. |
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Term
| Statutory control - UCTA: Breach |
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Definition
| s3(2): where one party deals as a consumer, liability for breach of contract can only be limited subject to the reasonableness test. |
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Term
| Statutory control - UCTA: "Dealing as a consumer" |
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Definition
s2(1) In order to deal as a consumer:
- one party must not make the contract in the course of a business
- the other party must
- In relation to supply of goods or hire purchase, the goods must be ordinarily supplied for private use or consumption. |
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Term
| Statutory control - UCTA: Sale of Goods |
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Definition
Regarding terms implied by SGA.
s6(1) provides that liability for the term implied by s12 SGA cannot be excluded
s6(2) provides that liability arising from ss 13; 14; 15 SGA cannot be excluded in consumer contracts |
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Term
| Statutory control - UCTA: Reasonableness |
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Definition
s11 UCTA:
(1) Re: contractual term: "shall have been fair and reasonable to be included having regard to the circumstances..."
(3) Must be fair and reasonable to
(4) limitation to a specific sum: pay regard to availability of resources and insurance |
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Term
| Statutory control - UCTA: Reasonableness (Schedule 2) |
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Definition
Pay attention to these factors when deciding reasonableness:
- Bargaining positions of the parties
- Whether the customer was induced to agree to the term
- whether the customer knew (or ought to) of the term |
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