Term
| Exemption Clause definition |
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Definition
| Clauses which seek to enable one of the parties to a contract to exclude their liability. |
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Term
| In order for an exclusion clause to be valid at common law, it must satisfy three tests: |
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Definition
1. It must be a term of the contract. (Incorporated into the contract)
2. It must cover the damage that was caused.
3. It must be reasonable |
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Term
Incorp by Signature-
When a document containing contractual words is signed, the party signing it is bound whether they have read and understood it or not. See: |
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Definition
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Term
Incorp by Signature-
Contract can be invalidated if there is a misrepresentation as to the effect of the exclusion clause. See: |
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Definition
| Curtis v Chemical Cleaning and Dyeing Company |
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Term
| Name the three ways an exemption clause can be incorporated into a contract: |
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Definition
1. Incorporation by signature.
2. Incorporation by notice.
3. Incorporation by previous course of dealings. |
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Term
Incorp by notice--
The exclusion clause must be introduced before or at the time of the contract. See (2 cases): |
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Definition
Olley v Marlborough Court Hotel
Thornton v Shoe Lane Parking |
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Term
Incorp by notice--
The notice of the exclusion clause must be reasonable. That is, the party subject to the clause must be made sufficiently aware of it's existence before or at the time of contract. See (2 cases): |
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Definition
Parker v South Eastern Railway Co.
Thompson v LMS Railway Co. |
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Term
Incorp by notice-
If notice is a document, the document must be a contractual document. See: |
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Definition
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Term
Incorp by notice-
Reference to another ticket or document which contains exclusion clause does not necessarily make it unreasonable. See (2 cases): |
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Definition
O'Brien v MGN Limited-- reference to another doc was adequate and reasonable
Dillon v Baltic Shipping Co.-- reference to another doc was inadequate and reliance on exclusion clause failed. |
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Term
Incorp by notice--
Some clauses which are particularly onerous or unusual must be brought to the attention of the other party in the most explicit way. See (2 cases): |
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Definition
Interfoto Picture Library Limited v Stiletto Visual Programmes Limited.
Denning LJ said "some clauses i have seen need to be painted in red ink with a red had pointing to it to be sufficient"
Ocean Chemical Transport v Exnor Craggs Ltd. |
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Term
Incorp by previous course of dealings-
Although the document containing the exclusion clause was not received until after the formation of the contract, the court held that the clause was incorporated as a result of years of previous dealings between the parties: |
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Definition
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Term
Incorp by previous dealings-
This rule will only apply where previous dealings have been consistent. See (2 cases): |
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Definition
McCutcheon v David MacBrayne
Hollier v Rambler Motors Ltd |
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