Exemption Clauses

?
  • Created by: em.101
  • Created on: 17-12-17 11:27
Limitation Clause
When a party LIMITS liability
1 of 26
Exclusion Clause
When a party AVOIDS ALL liability
2 of 26
How to examine the validity of an exemption clause? (3)
(1) Incorporation (2) Construction (3) Legislation
3 of 26
Incorporation
Is the clause part of the contract? (4 rules)
4 of 26
Incorporation rules (4)
(1) too late (2) brought to attention (3) contractual manner (4) course of dealing
5 of 26
Incorporation: Too late (1)
Olley v Marlborough Court // Thornton v Shoe Lane Parking
6 of 26
Incorporation: Brought to attention (2)
Parker v SE Railway
7 of 26
Incorporation: Contractual manner (3)
Chapelton v Barry
8 of 26
Incorporation: Course of dealing (4)
Hollier v Rambler Motors // McCutcheon v McBrayne
9 of 26
Construction
Interpretation of clauses= does it cover the damages?
10 of 26
Construction rules (3)
(1) main purpose (2) contra proferentem (3) oral statement
11 of 26
Construction: Main purpose rule
An individual term may not defeat the MAIN PURPOSE of the contract
12 of 26
Main purpose rule CASE
Glynn v Margetson
13 of 26
Construction: Contra proferentem
Any doubt/ ambiguity in a clause will be interpreted AGAINST the offeror: "interpretation against the draftsman"
14 of 26
Contra proferentem CASE
Houghton v Trafalgar Insurance
15 of 26
Overriding oral statement CASES
Mendlessohn v Normand // Curtis v Chemical Cleaning Company
16 of 26
Legislation
Is there any relevant legislation that may effect the clause?
17 of 26
Legislation CASES
UCTA 1977 // UTCCR 1999
18 of 26
UCTA 1977 : S2.1 / 2.2 / 12
S2.1: can't exclude DEATH & PI / S2.2: may be allowed if REASONABLE / S12: only covers consumers
19 of 26
UCTA: S2.1 & 2.2 CASE
Thompson v Lohan
20 of 26
UCTA S3 (links to S11) "reasonableness"
Standard business terms: can't exclude liability for NON- PERFORMANCE
21 of 26
UCTA: S11 .1 / .2 / .4 / .5
.1: facts know / .2: strength of bargain power, inducement& trade custom / .4: D's resources& insurance availability / .5: offeror prove exclusion clause is REASONABLE
22 of 26
UCTA S3 & 11 CASES (7)
Green v Cade / George Mitchell v Finney Lock Seeds / Smith v Bush&Harris v Wyre Forest / O'Brien v Mirror Group / Woodman v Photo Trade Processing / Watford Electronics v Sanderson / Granville Oil Chemicals v Davies Turner
23 of 26
UTCCR 1999
based on EU directive- terms must be in plain language
24 of 26
UTCCR: S5.1
term= unfair if "contrary to the requirement of good faith... causing a significant imbalance in the parties' rights and obligations"
25 of 26
UTCCR: facts considered by courts (4)
(1) bargain strength (2) inducement (3) special requirements of consumer (4) how fast supplier acted
26 of 26

Other cards in this set

Card 2

Front

When a party AVOIDS ALL liability

Back

Exclusion Clause

Card 3

Front

(1) Incorporation (2) Construction (3) Legislation

Back

Preview of the back of card 3

Card 4

Front

Is the clause part of the contract? (4 rules)

Back

Preview of the back of card 4

Card 5

Front

(1) too late (2) brought to attention (3) contractual manner (4) course of dealing

Back

Preview of the back of card 5
View more cards

Comments

No comments have yet been made

Similar Law resources:

Terms
See all Law resources »See all Civil courts and ADR resources »