Max's Legal Refresher - Contract Law (II) - Flashcards in University Law

1. Which is NOT one of the Smith v Eric Bush factors the court can take into account where relevant to reasonableness of exemption clauses?

In terms of advice, would it be reasonably practicable to obtain the advice from an alternative source taking into account considerations of cost and time?
Defendant's resources?
What are the practical consequences of the decision on reasonableness?
How difficult is the task being undertaken for which liability is excluded?

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Fair and reasonable in the subjective opinion of each of the parties at time of contract
Fair and reasonable having regard to circumstances which were or ought to have been known to parties when contract made
Fair and reasonable having regard to objective circumstances at time contract entered into
Fair and reasonable according to the difficulty of the task undertaken & practical consequences of the decision on reasonableness

Can exempt negligence only if "negligence" (or synonym) used or implied, clause doesn't imply strict liability, & accords with intention & relative power of both parties (Canadian Steamship; Monarch)
If serious breach, matter of construction whether E clause covers breach - must be v clearly worded in such cases (Photo productions)
Experienced business-people at large companies of equal power should work it out themselves (Watford Electronics)
Contra proferentem, i.e. if wording ambiguous, construed against party relying (Houghton)

Third party must have inferred that the agent had authority from the conduct of the parties and the circumstances of the case
Third party must alter his position, eg by entering into contract
Third party must rely on the representation believing that the agent had authority
Principal must have represented (by words or conduct) that the agent had authority

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