Exclusion Clauses

Exclusion clauses revision notes. Illustrated with cases and what was held.

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  • Created on: 15-05-11 16:36
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Exclusions Clause Case Description
Signature L' Estrange v Graucob The machine stopped working
The general rule is if you sign but the exclusion clause was
something it is binding. still incorporated because it
was signed so it was enforced.
Course of dealing Hollier v Rambler Motors The claimant used the
Must be consistent and regular. defendant's services about ¾
If a party deals as a consumer times in 5 years. It was
they much have a considerable unincorporated due to irregular
number of past transactions. course of dealing.
Notice
Notice can be part of an EC if
reasonable notice if given. In
deciding whether this is the
case the following things are
taken into consideration.
Notice - Document Parker v SE Railway A ticket was issued which can
The kind of document the contain contractual terms,
exclusion clause is in must be there was reasonable notice. It
something which you would Contrast is a question of fact. SE Railway
expect to include contractual were only liable for the stated
terms terms.
Chaplet v Barry UDC A receipt was issued which is a
document which you would not
expect to include contractual
terms.
Notice ­ Unusual liability Spurling v Bradshaw Lord Denning made an analogy
in this cause of when a clause is
onerous or unusual to make it
really obvious. "Printed in red
ink, with a red hand pointing
to it on the face of the
document"
Notice ­ Time the notice was Olley v Marlborough court Contract made at reception
given hotel desk, notice re lost luggage
Notice much be given before was too late to be
or during a contract is being incorporated as it was
made. Afterwards is too late. delivered to late.
Contra Proferentem Rule Houghton v Trafalgar Square Excess load could have meant
Ambiguous wording is either weight or amount of
interpreted against the party people. It was given the
relying on it. meaning to make the
defendant liable for the policy.
Main Purpose Rule Glynn v Margetson The main purpose was to ship
Anything inconsistent with the the oranges so the clause
main purpose is ignored. about allowing the ship to pull
in at any port was ignored.

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Test of reasonableness Britvic soft drinks v Messr LTD Exclusion clause of liability is
Taken into account when unreasonable. Both parties are
deciding a clause is reasonable. of equal barraging power but
Relative barraging, strengths wouldn't expect to carry risk of
of parties, buyer given defect product.…read more

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