exlcusion clauses and the proctection of consumers

a practice exam question

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B114 practice question 9 marks
Discuss three ways in which judges have protected consumers by the controls on exclusion clauses
which they have introduced
Knowledge of the clause: One of the first principles that was developed by judges in court is that an
exclusion clause will only be incorporated into a contract, where the person subject to the clause has
actual knowledge of its existence. A case example of this is Olley v Marlborough 1949.In this case a
women's coat was stolen from her hotel room. The hotel had put up a sign stating `The proprietors
will not hold themselves responsible for articles stolen'. The women did not have knowledge of this
exclusion clause at the time the contract was formed. Therefore meaning the hotel had to except
partial liability and she was able to claim the value of her coat from the hotel.
Secondly, judges make sure that businesses don't avoid liability, for serious breaches such as
negligence. They are able to do this by looking at the lengths of which a business has gone to make a
consumer aware of an exclusion clause. A case example of this is Chapelton v Barry Urban District
Council 1940.In this case the claimant hired two deck chairs and received a small receipt. However,
he was not aware of the exclusion clause of the back of the receipts which read `The council will not
be liable for any accident or damage caused from the deck chair'. The chairs were defective the
company tried to rely on the exclusion clause. However, the courts ruled that the company could not
rely on the clause as it had not been effectively bought to the claimant's attention and they did not
go far enough to make him aware of the clause.
Lastly a judge will not allow a seller to avoid liability when the wording of a clause is confusing and/or
ambiguous .A exclusion clause will only allow businesses to avoid liability for contractual breaches of
negligence .If specific to the circumstances in which the seller wishes to avoid liability.


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