Exclusion Clauses

Question 1

Exclusion clause definition

Answer 1

Clause that attempts to nullify liability where one party claims not to be responsible for what happens within the contract.

Question 2

Regulation for exclusion clauses under common law

Answer 2

• Has the clause been incorporated in the contract?
• Does the clause cover the alleged breach?

Question 3

Ways of incorporating clause in the contract:

Answer 3

By signature
By reasonable notice
By previous course of dealings

Question 4

By signature meaning

Answer 4

If a document is signed at the time of making the contract, its content becomes terms of that contract, regardless of whether they have been read and understood.

Question 5

By reasonable notice meaning

Answer 5

A party seeking to rely on an unfair term must demonstrate that they gave reasonable notice.

Question 6

By previous course of dealings meaning

Answer 6

If the parties have dealt with each other before then the term may be incorporated through these dealings even where the term was not brough to the attention of the other party on this occasion.

Question 7

Case for incorporation through signature

Answer 7

L’Estrange v Graucob

Question 8

Case for incorporation through reasonable notice

Answer 8

Olley v Marlborough Court Hotel

Question 9

Case for incorporation through previous dealings

Answer 9

Hollier v Rambler Motors

Question 10

Contra proferentem rule

Answer 10

Used to answer if the clause covers the alleged breach. Where there is any ambiguity in the wording of the clause, the courts will interpret the clause against the party seeking to use it.

Question 11

Case for the contra proferentem rule

Answer 11

Andrew Bros Ltd v Singer Cars

Question 12

Statutory control, and when it is used

Answer 12

Statutory controls are brought up to check if the exclusion clause does not conflict with implied terms.
Enforces Unfair Contract Terms 1977 and Consumer Rights Act 2015

Question 13

What does the Unfair Contract Terms Act 1977 cover?

Answer 13

Liability for negligence (s.2)
Liability for non-performance (s.3)

Question 14

Unfair Contract Terms s.2

Answer 14

Liability for death or personal injury resulting from negligence cannot be excluded. Any clause which attempts to do this will be rendered ineffective.

Question 15

Unfair Contract Terms s.3

Answer 15

Restrictions on the ability to:
- Exclude/restrict liability for breach of contract.
- Provide a different performance to that reasonably expected/no performance at all.

Invokes s.11

Question 16

Unfair Contract Terms s.11

Answer 16

Reasonableness test:
Term must be fair and reasonable (based on everything that is and should be known).

Party relying on it must have the resources to cover themselves from the exclusion clause.

Party relying on the clause must prove it was fair and reasonable.

Question 17

Consumer Rights Act s.31

Answer 17

In relation to selling goods, it is not allowed to bring an exclusion clause contradicting the following:
s.9-11
s.14 & 15

Question 18

Consumer Rights Act s.57

Answer 18

In relation to providing services, it is not allowed to bring an exclusion clause contradicting s.49-52

Question 19

Consumer Rights Act s.65

Answer 19

It is prohibited to have an exclusion from liability of death or personal injury.