Exclusion clauses

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  • Created by: luiza sz
  • Created on: 18-04-19 15:42
exclusion clauses
purports to exclude contracting party's liability for breach in contract. "no liability"
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limitation clause
purports to limit contracting party's liability for a breach of contract
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Regulation/ control of exclusion clauses
common law and statutory regulation
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common law regulation
courts seek to control/ regulate by requiring exclusion clauses to be incorporated into contract and by interpreting exclusion clauses narrowly
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1- Incorporation of exclusion clauses- within contract
exclusion clause must be within a contractual document. should be notified at offer and acceptance stage (Chapleton v Barry)
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previous course of dealing
incorporated on basis of consistent previous course of dealings between parties
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Timing
exclusion must be incorporated into the contract before or at the time of the contract (Shoe Lane Parking)
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Notice
parties relying on the clause must give reasonable notice of clause
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Signature
where contract contained in signed document, party who signs is bound by all term in document, unless fraud or misrepresentation. (L'Estrange)
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2- Interpretation of exclusion clause
(Literal rule). General rule: clear word needed to exclude/ limit liability, therefore, exclusion clause must be identify the type of liability being excluded. Limitation clauses are less strictly interpreted than exclusion clauses
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The Contra Rule
if exclusion clause is unclear, it should be interpreted against the party relying on it
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Statutory Regulations
need for further control to achieve ' fairness'
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Exclusion clauses in consumer contracts (services and goods)- Consumer Rights Act 2015
gives greater protection to consumers
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s.31 and 57 implied term
trader can't exclude or limit liability for breach of an implied term
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s. 65
trader can't reduce lability for death or personal injury
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s.62
All contract terms must be fair, consumer is not bound by unfair terms. a contact is unfair if it is country to the requirements of good faith and it causes significant imbalance in the contracting parties rights and obligations.(Parking Eye v Beavsi
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Unfair Contract Terms Act 1977- exclusion clauses in business contracts
where both parties are contracting in the course of business
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s.2(1)
A business van not exclude liability for death or personal injury
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s.2 (2)
any term which excludes/limits business liability fo loss or damage to property caused by negligence must be reasonable
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s.3
where the contract is on D'** standard form of busine**, any term which excludes or limits liability for breach of contact must be reasonable
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s.6
cannot exclude liability fo breach of contract relating to title of goods (legal authority) and description if goods
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s.11- Reasonableness (on the party to prove)
reasonableness is determined by reface to circumstance at the time the contract was made which we know or which ought reasonably to have been known. Bargaining power or whether C knew or ought to know of the term
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Exclusion in private contracts
neither parties in course of business
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Unfair Contract Terms Act 1977- s2 (1),(2), s 6 + s6*
any term which excludes liability for breach of contract relating to description of good/ quality of good/ fit for purpose of good must be reasonable.
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Other cards in this set

Card 2

Front

limitation clause

Back

purports to limit contracting party's liability for a breach of contract

Card 3

Front

Regulation/ control of exclusion clauses

Back

Preview of the front of card 3

Card 4

Front

common law regulation

Back

Preview of the front of card 4

Card 5

Front

1- Incorporation of exclusion clauses- within contract

Back

Preview of the front of card 5
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