Exclusion Clauses (4)
2. Contra Proferentum: Next the judges will see if the clause is valid under the Common Law rules of 'Construction'. i.e. construction of the words in the clause. Judges do this by interpreting the clause against the party seeking to rely on it i.e. is it valid under the rules of contra ptoferentum?
This is done in 2 ways...
1. Ambiguity: If a word in a clause is ambiguous it will be interpreted against the party. CASE: "Houghton v Trafalgar". In this case the claimant was involved in a car accident whilst carrying 6 people in a 5 seater car. A clause in the contract stated the company wouldn't be liable if the car was carrying an excess "load". HELD: The word 'load' was ambiguous. It should be given a narrow interpretation, referring to 'goods' not people.
2. Strict Interpretation: If there is no ambiguity then the judge will be very strict in their interpretation insisting the clauses cover the breach. Here, they check every word and see it covers what has happened. CASE: "Andrew Bros v Singer Cars". In this case the customer asked for a 'new car', but he was given a used car. HELD: The clause excluded liability for implied terms but not express terms ... the clause wasn't valid as the words in the clause didn't cover the breach. LATER CASE: "Hollier v Rambler Motors". In this case Hollier left his car at the garage, as he'd done on previous occassions. The normal conditions of the contract were signed by Hollier before, but the car was damaged by fire caused by the garage's negligence. HELD: There were words missing i.e. "even in our own negligence", from the clause and it didn't cover the breach.