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    Hi,

    Just revising for a Contract Law (Hons) course, and i'm struggling to find any authority for whether the courts interpreting exclusion clauses in a harsh manner is right or wrong.

    I'm able to form basic arguments (eg required for protection of consumers, undermines freedom of contract) but i'm unable to find any journals or substantial support within the textbooks - most are concerned with the substance of the rules rather than the justifications/is it right or wrong.

    Just wondering if anyone has any ideas?
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    (Original post by v3n0m06)
    Hi,

    Just revising for a Contract Law (Hons) course, and i'm struggling to find any authority for whether the courts interpreting exclusion clauses in a harsh manner is right or wrong.

    I'm able to form basic arguments (eg required for protection of consumers, undermines freedom of contract) but i'm unable to find any journals or substantial support within the textbooks - most are concerned with the substance of the rules rather than the justifications/is it right or wrong.

    Just wondering if anyone has any ideas?
    Default assumption: anything the courts do is wrong.

    BTW have you read the Koffman and Macdonald book? I know that it deals with exclusion clauses in loads of details. Are you questioning the law itself (i.e. UCTA) or just the interpretation of it?
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    I think it would be more along the lines of the interpretation of exclusion clauses (including UCTA and UTCCR) for this question - as to whether it is justifiable the courts show a lot of hostility to exclusion clauses in general, where they're aimed towards consumers.

    An example argument would be; allowing the court to overrule exclusion clauses undermines the doctrine of freedom of contract to a large extent, and that consumer's should be free to agree to what terms they like - consumer's don't necessarily want UCTA and UTCCR protections forced upon them. Counter arguments would be consumer's need to be protected etc

    I have basic ideas but lacking in substance and authoritative support - i'll check out the book and see if it offers any assistance
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    (Original post by v3n0m06)
    I think it would be more along the lines of the interpretation of exclusion clauses (including UCTA and UTCCR) for this question - as to whether it is justifiable the courts show a lot of hostility to exclusion clauses in general, where they're aimed towards consumers.

    An example argument would be; allowing the court to overrule exclusion clauses undermines the doctrine of freedom of contract to a large extent, and that consumer's should be free to agree to what terms they like - consumer's don't necessarily want UCTA and UTCCR protections forced upon them. Counter arguments would be consumer's need to be protected etc

    I have basic ideas but lacking in substance and authoritative support - i'll check out the book and see if it offers any assistance
    My worry with these kinds of arguments is that you seem to be entering the realm of normative ethics. Why should consumers be free to agree to terms that they like? What does freedom mean, etc? And you can't do normative ethics without learning normative theories. Perhaps this is irrelevant but I say this as someone who has come to law after spending a considerable amount of time considering these issues.
 
 
 
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