Flashcards in Exam terms Deck (25):
THREE CONTRACTUAL WAYS TO VARY RISK
1. Limitation of Liability Clauses - limit liability – “cap”
2. Exclusion Clauses (also known as exemption clauses) - kills the liability
3. Indemnity Clauses – moves liability
grounds of liability for contract and tort
contract- breach of contract. tort- negligence
Contra proferentem rule goes against who ?
party who prepared the contract usually take or leave basis
party who seeks to rely on the ambiguous provision eg the beneficiary of the exclusion clause
what courts will do with contra proferentem rule?
any ambiguities in the exemption clause will strike the exclusion clause down
grey list terms
if they fail the fair and reasonable test
Capacity for under 18s
Under 16 has no contractual legal capacity.
16-18 has partial capacity and can be challenged before the reach 21.
Legislation for capacity
AGE OF LEGAL CAPACITY (SCOTLAND) ACT 1991
Legislation if an obvious mistake is made in a contract
Law reform miscellaneous provisions (Scotland) act 1985
Legislation for blacklist terms and grey list terms
unfair contract terms act 1977
Courts will not asses the fairness of what and what? What legislation is this under?
Subject matter(unless misrepresentation) and price(unless they don’t have capacity) s64 of consumer rights act 2015
What 6 things does the consumer rights act 2015have?
Black list terms and grey list terms and conform too its description.
The seller has a right to sell the goods
The goods will be of satisfactory quality when in a business to a consumer.
The goods will match their description
If a term excludes something which is not good quality then it will be?
If there is a meal on a menu it is a?
Invitation to treat as they only have a limited stock.
Seeing an exclusion clause means that they? And what case goes with this?
Olley v mulbrugh court limited
Thornton v shoe lane parking
If there is a contract between people say what in the exam?
Say who they are e.g consumer and producer or provider or dealer.
If a term is expressed excluding something and is grey list then what act and section does that come under?
Consumer rights act 2015 s62
What is an example of some terms that are given in the unfair terms list?
Changing the price of something after a contract has been made. You can compare this in an exam to test the fairness of a term.
If my jacket was stolen in a restraint clauset what would you argue?
Can argue that there was a reasonable expectation for them to protect your jacket or
It is not the main business for them so it is reasonable.
Food that came only a small portion are the goods of a satisfactory quality?
Yes, they were not burnt
If fish and chips are £200 then is that fair?
It is fair as the fair and reasonable test doesn’t come under cost or subject matter.
Was it misrepresentation that there was only a small portion of chips?
No as there was no picture or anything that they said to mislead them.
Terms excluding negligence need to be what?
They need to be specific as any ambiguity will be struck down by the contra prefferendum rule.
Frustration of a contract do people need to carry on?
No, no one has the obligation to continue with the contract. Can quote the case where war broke out and the polish people got their money back for the engines.
Is satisfactory quality between person to person or buisness to person?
Business to person.