Exclusion Clauses Flashcards
(9 cards)
- Def
An exclusion clause is a term in a contract which excludes or limits liability for a breach of the contract
Exclusion clauses can be incorporated into the contract through signed agreements where this has been brought to the attention of the party (L’Estrange v Graucob; in Curtis v Chemical Dying Co. - the misrepresented term was interpreted in light of this misrepresentation)
- Attention
The term must be brought to the claimants attention, in Olley v Marlborough Court Hotel an exclusion clause on the back of a hotel door was not incorporated as the contract had already been made
- Prior dealings
Where there has been prior dealings the court will only incorporate an exclusion clause where the party is aware of the specific terms, in McCutcheon v David MacBrayne there was no exclusion clause as C was only generally aware of the term
- Ambiguous
The contra proferentem rule where the term is ambiguous the term will be interpreted in favour with
the innocent party
- S64/5
Statutory regulation of exclusion clauses: Under s64 Consumer Rights Act 2015 any unfair terms will not be incorporated into the contract, and under s65 a trader cannot exclude liability for death or
personal injury
- S31
Under s31 CRA 2015 a consumer contract cannot exclude or restrict liability for s9-11 rights
- ‘Grey List’
Schedule 2 of the CRA outlines clauses which will never be incorporated, the ‘Grey List’ includes disproportionate high sums of compensation, discretionary actions by the trader or terminating a contract without grounds
- ?
The Unfair Contracts Terms Act 1977 governs trader to trader contracts, under s2(1) a party cannot exclude liability for death or serious injury
9.
S3 imposes a reasonableness test which is assessed through s11, a term will be reasonable depending on whether the parties knew of the existence of the term, whether there is an equality between the bargaining power of the parties and whether it restricts any rights through SOGA/SGS
