Exclusion And Limiation Clauses - Statutory Contols Evaluation

Question 1

For and against for S.2(1) UCTA - can’t exclude liability for personal injury or death due to negligence

Answer 1

For: fair as encourages safe trading practices, if not liable for death and PI then may have unsafe
Against: goes against freedom of contract, as long at it is agreed should be allowed

Question 2

For and against for s.2(2) UCTA that can exclude other liability like damage to property and other implied terms if reasonable

Answer 2

For: fair as no weaker party, same level. Businesses have knowledge of business whereas consumers don’t. Businesses also have a lot of money. Freedom of contract. Also not as serious as death
Against: lack of certainty around reasonable definition. Subjective and one side may see as reasonable and the other not. Depends on judge’s opinion of what is reasonable in that case. Eg when are bargaining strengths equal?

Question 3

For and against for S.65 liability for death and PI can’t be excluded

Answer 3

For: Good for safety standards
Against: goes against freedom of contract, if freely agreed then should be able to make decision

Question 4

For and against for S.62 CRA All other terms must be fair

Answer 4

For: Means that unreasonable and unfair terms cannot be put into consumer contracts which protects consumers as the weaker party
Against: but meaning of fair is subjective and not clear. Different opinions. Like reasonable. Can lead to uncertainty eg grey list is a list of terms that ‘might be unfair’ - when are they unfair? Term allowing to change the price after, on grey list so only potentially unfair - why?

Question 5

For and against for s31 and 57 that terms re goods and re services cannot be excluded

Answer 5

For: Implied terms are basic things to expect and are guaranteed so protects the consumer who is weaker party. Only fair that that they can’t be excluded. Prevents traders limiting consumer protection
Against: Interferes with freedom of contract as parliament doesn’t care, only about protecting consumer and public interest. Also doesn’t protect consumer and consumer exclusion clauses. Selling 2nd hand goods. Could exclude liability for implied terms.