exclusion clauses

Question 1

What is an exclusion clause?

Answer 1

• An exclusion clause excludes or limits liability for breach of contract
• in general the courts allow the parties to agree to any terms they want under the contract of freedom. However, if one person has more power the the courts can limit this

Question 2

Thornton v Shoelane Parking

Answer 2

the exclusion clause was not part of the contract when the agreement was made so it was not effective

Question 3

L’Estrange v Graucob 1934

Answer 3

if the exclusion clause is a written agreement that the party has signed then they have accepted the exclusion clause as part of the contract
(would be a different outcome now due to the consumer rights act)

Question 4

Curtis v Chemical Cleaning

Answer 4

the effect of an oral statement, it becomes whatever the term is

Question 5

Olley v Marlborough

Answer 5

hotel claimed that they were not liable due to the exclusion clause, the agreement was made at reception but the exclusion clause was in the bedroom so it isn’t valid

Question 6

Hollier v Rambler Motors

Answer 6

• prior dealings
  because he had only used the garage 3-4 times it wasn’t frequent enough so the exclusion clause wasn’t part of the contract

Question 7

What is the Contra Proferentem Rule

Answer 7

• where there is a doubt about the meaning of a term, the words will be construed against the person who made it

Question 8

Transocean Drilling UK LTD v Providence Resources PLC

Answer 8

there were complicated terms in the contract. The parties of the agreement were in equal bargaining power. This rule is to be used when the term is both one sided and ambiguous

Question 9

McCutcheon v David MacBrayne

Answer 9

example case of the contra proferentem rule
it was unclear so it was used against the company

Question 10

What are some statutory controls

Answer 10

> consumer rights act 2015
excluding liability for implied terms
cannot exclude liability for death or personal injury from negligence

Question 11

What are some restrictions of terms?

Answer 11

> fairness test (in the consumer rights act)
- the grey list

Question 12

Where is the definition of unfair terms in the consumer rights act

Answer 12

Section 62

Question 13

define unfair terms

Answer 13

as those of which who put the consumer at a disadvantage by limiting the consumers rights or disproportionately increasing their obligation

Question 14

what is the grey list

Answer 14

a list of unfair terms

Question 15

Give some examples of terms on the grey list

Answer 15

• terms that allow disproportionate charges
• terms that allow the trader to change the price after the consumer is bound