Contract law

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  • Created by: Seibahb
  • Created on: 10-01-19 22:42
What are exemption clauses?
A contract terms which either completely (exclude) cuts waive remedy of limits liability
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What are the three 'hurdles' before you can rely on exemption clauses?
Incorporation: common law test - part of contract law. Construction: when interpret law, does it cover breach claimant asks about. Regulations (UCTA) statutes, reasonableness, previous deals
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Common Law test - Incorporation - What happens if a person signs a contractual document?
L'estrange: Bound by its terms, even if they have not read it.
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Common Law test - Incorporation - What happens if there is a misrepresentation as to the existence or extent to an exemption clause?
Curtis - It will disentitle its creator to the benefit of the exemption.
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Common Law test - Incorporation - What should happen where notice of terms is given in a document?
Chapellton - Reasonable - The document must be one which is know to, or which might reasonably expected to, contain terms intended to form part of a contract.
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Common Law test - Incorporation - When is a person bound by the exempting condition in a ticket?
Reasonableness - Thornton - if he knows that the ticket is issued subject to it or if the other party did what was reasonably sufficient to give him notice of it. and what is reasonably sufficient depends on how unusual the exemption clause is.
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Common Law test - Incorporation - what steps should be taken to make the other party aware of the term?
Olley - Reasonable steps should have been taken to draw the term to the party's attention at or before the time the contract is made.
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Construction: What should be asked when it comes to construction?
is the clause purporting to exclude liability for the particular breach and the loss/damage it has caused? Does the clause do its job? - cover type of breach or damage
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Construction: what is the Contra proferentem rule?
He who profers the law will be control to him
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Construction: What must be clear?
very clear words must be used to exclude negligence liability
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Construction: Holler v Rambler Motors
could not rely on exemption clause on case, clause created ambiguity
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Construction: Houghton
Any load is ambiguous, should have made it clear, people fell out of exemption clause
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Construction: What is there no rule of Law for?
That liability cannot be excluded for an exceptionally serious breach - Photo Production Ltd v Securior Transport Ltd (1980)
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Regulation - Unfair Contract Terms Act (UCTA) 1997, what is the effect of UCTA?
No effect: clause is a negotiated contract which excluded liability for breach of an express term. Exclusion is ineffective: Clause which excluded negligence liability cause death/personal injury - s2(1)UCTA
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Regulation - Unfair Contract Terms Act (UCTA) 1997, Reasonable test - S11 UCTA
must be reasonable term
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Schedule 2 Guidelines - reasonable or not?
relative bargaining position of parties (Chadwick in Watford Electronics v Sanderson (2001)). Inducement to agree to exemption clause. The extent to which the customer knew or reasonably ought to known of the clause.
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whether it was reasonable to expect compliance with condition if there was one. bespoke goods, use exemption to extend comfortableness
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section 11(4) UCTA - limitation clauses
a - the resources which the defendant could expect to be available to him for the purpose of meeting the liability should it arise.b how far it was open to the defendants to cover himself by insurance
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s11 - ucta smith v Eric bush (1990) guidelines
negligent liability, the difficulty of the task
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Reasonableness of the whole clause
Stewart Gill V Horatio Myer (1992) - if whole clause if unreasonable then unreasonable Watford Electronics v Sanderson (2001) - if you can split an exemption clause in two, the court will assess 2 exemption clauses
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What are the three 'hurdles' before you can rely on exemption clauses?

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Incorporation: common law test - part of contract law. Construction: when interpret law, does it cover breach claimant asks about. Regulations (UCTA) statutes, reasonableness, previous deals

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Common Law test - Incorporation - What happens if a person signs a contractual document?

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Common Law test - Incorporation - What happens if there is a misrepresentation as to the existence or extent to an exemption clause?

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Common Law test - Incorporation - What should happen where notice of terms is given in a document?

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