Types of Terms
- Created by: Launston
- Created on: 14-05-14 11:32
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- Types of Terms
- Primary and secondary obligations
- Exemption, limitation, agreed/liquidated damages, penalty
- Exclusion Clauses
- Exclude the liability to pay damages for a breach of contract - can be legitimate or problematic
- Commercial contracts - used to define the limits of each party's liability
- Consumer contracts - not necessarily inappropriate but contained in seller's terms and may not be understood
- Commercial contracts - used to define the limits of each party's liability
- Common law controls
- Concern that exclusion clauses were unfair to buyers BUT judges cannot strike down unfair terms (now statutes exist)
- Challenging incorporation - Thornton v Shoelane Parking etc.
- Challenging wording - does exclusion cover the breach?
- Contra proferentum rule
- Ambiguities construed against person seeking to rely on clause
- Andrews Bros v Singer
- Ambiguities construed against person seeking to rely on clause
- Contra proferentum rule
- Fundamental breach
- Rule of law - if breach is fundamental, exclusion clause cannot be relied upon
- Rule of construction - whether clause covers breach is matter of interpretation
- Concern that exclusion clauses were unfair to buyers BUT judges cannot strike down unfair terms (now statutes exist)
- Attempts to exclude liability for negligence
- Standards of performance
- Strict liability: must perform exactly to agreed terms
- Negligence liability: reasonable care and skill
- Canada Steamship v The King
- Hostility to excluding liability for negligence unless express language
- Wide enough to cover negligence, but not so wide as to cover other types of liability
- Hostility to excluding liability for negligence unless express language
- Standards of performance
- Exclude the liability to pay damages for a breach of contract - can be legitimate or problematic
- Legislating against unfair terms
- UCTA 1977
- Only applies to exemption clauses
- UTCC 1993
- UCTA 1977
- Primary and secondary obligations
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