Turn on thread page Beta
    • Thread Starter
    Offline

    0
    ReputationRep:
    We reserve the right to alter materials where such alteration would not affect the durability or operation of the item to be supplied.”

    is this an exclusion clause im confused?
    Offline

    2
    ReputationRep:
    No. An exclusion clause generally purports to exclude contractual or tortious liability. For instance- you'll often see a notice in a cloakroom saying something along the lines of "visitors leave personal possessions here at their own risk, we accept no liability or responsibility for any loss or damage." That is a classic exclusion clause because it prevents you from relying on your rights and suing the owners of the cloakroom for negligence (or potentially breach of contract depending on the circumstances). N.B. that many exclusion clauses have, since UCTA 1977, been subject to a "reasonableness" requirement and one cannot exclude liability for personal injury caused by negligence full stop.

    The term you're asking about doesn't attempt to exclude liability. It just allows the supplier of the item to alter materials where the durability or operation of the item is unaffected. It's not quite the same.
    • Thread Starter
    Offline

    0
    ReputationRep:
    (Original post by AdamTJ)
    No. An exclusion clause generally purports to exclude contractual or tortious liability. For instance- you'll often see a notice in a cloakroom saying something along the lines of "visitors leave personal possessions here at their own risk, we accept no liability or responsibility for any loss or damage." That is a classic exclusion clause because it prevents you from relying on your rights and suing the owners of the cloakroom for negligence (or potentially breach of contract depending on the circumstances). N.B. that many exclusion clauses have, since UCTA 1977, been subject to a "reasonableness" requirement and one cannot exclude liability for personal injury caused by negligence full stop.

    The term you're asking about doesn't attempt to exclude liability. It just allows the supplier of the item to alter materials where the durability or operation of the item is unaffected. It's not quite the same.
    Thank you very much Adam TJ, thats really helped
    Offline

    14
    ReputationRep:
    (Original post by AdamTJ)
    No. An exclusion clause generally purports to exclude contractual or tortious liability. For instance- you'll often see a notice in a cloakroom saying something along the lines of "visitors leave personal possessions here at their own risk, we accept no liability or responsibility for any loss or damage." That is a classic exclusion clause because it prevents you from relying on your rights and suing the owners of the cloakroom for negligence (or potentially breach of contract depending on the circumstances). N.B. that many exclusion clauses have, since UCTA 1977, been subject to a "reasonableness" requirement and one cannot exclude liability for personal injury caused by negligence full stop.

    The term you're asking about doesn't attempt to exclude liability. It just allows the supplier of the item to alter materials where the durability or operation of the item is unaffected. It's not quite the same.
    Unless I'm mistaken, I think the term *varies* liability for breach of a term.

    If this is a contract for sale of goods, then there's more to the story than saying it's not an exclusion clause. The SGA 1979 implies a term that goods sold by description comply with that description. The term in question varies that implied term. According to SGA 1979 s 55, "where a right, duty or liability would arise under a contract of sale of goods by implication of law, it may (subject to the Unfair Contract Terms Act 1977) be negatived or varied by express agreement..." (emphases added). This term does vary liability for breach of a term implied by law.

    In this situation, whether the purchaser is dealing as a consumer or business is relevant. If the purchaser is a consumer, "liability for breach of obligations arising from (seller's implied undertaking as to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose) cannot be excluded or restricted by reference to any contract term". If the purchaser of goods is a business, the party can only limit liability to the extent that the term satisfies the requirement of reasonableness (s 6(3)).
    Offline

    2
    ReputationRep:
    You are right to raise the point. I have to admit, I hadn't considered that, but there is a clear logic to what you're saying. Of course we don't know whether this is a sale by description! However, if it is, you can certainly envisage situations where a term like that would vary the s.13 condition. Even there though, it would very much be a matter of construction and fact dependent.

    In view of what you've said that, I suppose I'll have to modify my answer. Generally, I still don't think this would be an exclusion clause. However, if it is a sale by description for the purposes of the SOGA 1979, then potentially the term could vary the liability of the seller and could be construed as an "exclusion clause".

    Tell me what you make of that jjarvis, and feel free to disagree or correct me if you don't feel what I've said is right.
    Offline

    14
    ReputationRep:
    (Original post by AdamTJ)
    You are right to raise the point. I have to admit, I hadn't considered that, but there is a clear logic to what you're saying. Of course we don't know whether this is a sale by description! However, if it is, you can certainly envisage situations where a term like that would vary the s.13 condition. Even there though, it would very much be a matter of construction and fact dependent.

    In view of what you've said that, I suppose I'll have to modify my answer. Generally, I still don't think this would be an exclusion clause. However, if it is a sale by description for the purposes of the SOGA 1979, then potentially the term could vary the liability of the seller and could be construed as an "exclusion clause".

    Tell me what you make of that jjarvis, and feel free to disagree or correct me if you don't feel what I've said is right.
    You're right--if it's NOT a sale by description, then the term isn't implied by law. There are of course other terms implied by law, which this term might vary/alter.

    While I think you're right, I'd be loathe to call it an exclusion clause. I think it runs the risk of muddying the waters. (I have a sinking feeling I've already done that.) The clause changes contractual obligations, so that instead of excluding/limiting liability for breach, it prevents there being any breach in the first place. (I hope that makes sense.) Nonetheless, because it varies a duty implied by statute, it *might* fall under UCTA, which deals with various terms (not just exclusion clauses).

    There's a whole ream of possible situations involving such a clause, of course--battle of the forms cases in particular (consider Tekdata most recently) come to mind. A clause of this sort might also be subjected to substantial scrutiny by a court for incorporation reasons. Did the promisee have sufficient notice/did they consent to the term? This is all subsidiary to the broader question, but without more facts to go on (from the OP) all we can do is speculate.
    • Thread Starter
    Offline

    0
    ReputationRep:
    (Original post by jjarvis)
    You're right--if it's NOT a sale by description, then the term isn't implied by law. There are of course other terms implied by law, which this term might vary/alter.

    While I think you're right, I'd be loathe to call it an exclusion clause. I think it runs the risk of muddying the waters. (I have a sinking feeling I've already done that.) The clause changes contractual obligations, so that instead of excluding/limiting liability for breach, it prevents there being any breach in the first place. (I hope that makes sense.) Nonetheless, because it varies a duty implied by statute, it *might* fall under UCTA, which deals with various terms (not just exclusion clauses).

    There's a whole ream of possible situations involving such a clause, of course--battle of the forms cases in particular (consider Tekdata most recently) come to mind. A clause of this sort might also be subjected to substantial scrutiny by a court for incorporation reasons. Did the promisee have sufficient notice/did they consent to the term? This is all subsidiary to the broader question, but without more facts to go on (from the OP) all we can do is speculate.
    The sale of goods in this case was not a sale by description, the costumer gave specifications to the seller who manufactured the goods to the costumers specifications
 
 
 
Reply
Submit reply
Turn on thread page Beta
Updated: April 6, 2011

University open days

  1. University of Bradford
    University-wide Postgraduate
    Wed, 25 Jul '18
  2. University of Buckingham
    Psychology Taster Tutorial Undergraduate
    Wed, 25 Jul '18
  3. Bournemouth University
    Clearing Campus Visit Undergraduate
    Wed, 1 Aug '18
Poll
How are you feeling in the run-up to Results Day 2018?

The Student Room, Get Revising and Marked by Teachers are trading names of The Student Room Group Ltd.

Register Number: 04666380 (England and Wales), VAT No. 806 8067 22 Registered Office: International House, Queens Road, Brighton, BN1 3XE

Write a reply...
Reply
Hide
Reputation gems: You get these gems as you gain rep from other members for making good contributions and giving helpful advice.