Terms: Exclusion Clauses

Question 1

3 ways to control exclusion clauses

Answer 1

1. Has it been incorporated
2. Contra proferentum rule
3. Clause not effective under statute

Question 2

Thornton v Shoe Lane Parking

Answer 2

General rule: more onerous the exclusion, clearer it has to be

Question 3

L’Estrange v Graucob

Answer 3

If written in contract and signed

Incorporated even if not read/understood

Question 4

Interfoto v Stilletto

Answer 4

Exception for L’Estrange:

If signed unusual/onerous terms may not be incorporated without specific attention drawn to them

Question 5

Grogan v Robin Meredith

Answer 5

L’Estrange exception:

Signing non contractual document will not automatically incorporate terms

Question 6

Curtis v Chemical Cleaning

Answer 6

L’Estrange exception:

Oral statements overrule signed contracts

Question 7

Chappelton v BUDC

Answer 7

Written notices/tickets:

If I do not clear enough, won’t be incorporated

Question 8

Parker v SE Railway

Answer 8

Written notice/ticket:

When clear enough, will be incorporated

Question 9

O’Brien v MGN

Answer 9

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Question 10

Hollier v Rambler Motors

Answer 10

When there is not regular course of dealings, unlikely they are aware of exclusion

Question 11

Spurling v Bradshaw

Answer 11

When there is regular course of dealings, it’s likely they are aware of exclusion

Question 12

S62 CRA

Answer 12

If term considered unfair exclusion will not apply
Unfair based on:
- causing significant imbalance in parties’ rights and obligations under the contract to the detriment of the consumer

Question 13

S65 CRA

Answer 13

Can never exclude death/injury by negligence

Question 14

S31 CRA

Answer 14

Cannot exclude implied rights to goods

Question 15

S57 CRA

Answer 15

Cannot exclude implied rights to services

Question 16

S2(1) UCTA 1977

Answer 16

Businesses cannot exclude liability for causing death/injury by negligence

Question 17

S2(2) UCTA

Answer 17

Businesses can exclude liability for causing property damage by negligence
as long as reasonable

Question 18

S3 UCTA

Answer 18

Can exclude liability for breach of contract

As long as reasonable

Question 19

S6 UCTA

Answer 19

Can exclude implied terms about goods

As long as reasonable

Question 20

S7 UCTA

Answer 20

Can exclude implied terms about services

As long as reasonable

Question 21

S11(1) UCTA

Answer 21

Can use knowledge test to see what’s reasonable for all but S6&7
Term must have been reasonable based on what was known to parties at the time of making the contract

Question 22

S11(2) UCTA

Answer 22

Guidelines to reasonableness for implied goods/services found in Schedule 2

Question 23

Schedule 2

a)

Answer 23

Look at strength of bargaining power when deciding if reasonable

Question 24

Schedule 2

b)

Answer 24

Look at whether they received inducement to agree to the exclusion when deciding if reasonable
(If they were induced, more reasonable the exclusion as the other party gained from it)

Question 25

Schedule 2

c)

Answer 25

Look at whether C knew or should have reasonably known of exclusion to decide whether unreasonable
(If hidden/unclear less likely to be reasonable)

Question 26

Schedule 2

d)

Answer 26

Whether goods made to specific order of the customer

Customised goods may have lower quality

Question 27

Schedule 2

e)

Answer 27

Look at whether liability accepted only if certain conditions applied with to decide if reasonable

Question 28

S11(4) UCTA

Answer 28

Limitation clauses (limiting £ they can be liable for) may be unreasonable based on resources and availability for insurance