exclusion clauses

• what is an exclusion clause?

  They are terms in a contract that exclude or limit liability
• Where can exclusion clauses be found?

  On the contract, or on notices
• The Courts generally accept that individuals can agree any terms they choose. However they also recognise that during negotiations one party is often in a better bargaining position compared to the other.
• what is the RD of Pink floyd music v emi records?

  Ordinary english words will mean what they say
• if words are not clear and unambiguous, an objective test should be applied.
• What is the ratio of the case of compensation scheme v west bromwich building society?

  It states what objective test is needed to be applied if the words in an exclusion clause are not clear and unambiguous.
• What case states what objective test is needed to be applied if the words in an exclusion clause are not clear and unambiguous?

  Investors compensation scheme v west bromwhich building society
• What is the objective test to be applied if the words in an exclusion clause are not clear and unambiguous according to the case of investors compensation scheme v west bromwich building society?

  What a reasonable person would interpret to be the meaning.
• what are the 3 matters to help determine if an exclusion clause is part of a contract, in common law?

  1. Whether the agreement has been signed or not.
  2. whether any notice is incorporated in the contract
  3. A term can be incorporated as a result of previous dealings
• What 3 things must occur for a reasonable exclusion clause to be incorporated into a contract?

  1. There must be a contractual document, with reference to the distinction between such a document and a receipt
  2. There must be reasonable steps to draw the exclusion clause to the other party’s attention
  3. The reasonable notice must be given before the conclusion o the contract
• what is the RD of L'estrange v Graucob?

  If the party has signed a written agreement that contains the clause they are bound by it
• Which case has the RD of, 'if the party has signed a written agreement thatcontains the clause they are bound by it.' ?

  L'estrange v Graucob
• what is the RD of Curtis v Chemical cleaning and dyeing co?

  where the meaning of the clause is queried before signing the document, theexclusion clause may be construed as the oral statement suggests rather than as it is actually written.
• Which case has the RD of 'where the meaning of the clause is queried before signing the document, the exclusion clause may be construed as the oral statement suggests rather than as it is actually written.' ?

  Curtis v Chemical cleaning and dying co
• WHat are the facts of Curtis v chemical cleaning and dyeing co?

  The claimant took a dress to be cleaned and signed a form after being told it only excluded liability for stains. The dress was damaged, and the company tried to rely on a broader exclusion clause. The court ruled the exclusion was limited to what had been verbally explained.
• in terms of when any notice is incorporated into the contract, when can incorporation occur?

  Incorporation can only happen if, at the time the contract was made, the unsigned document was brought to the attention of the person suffering fromthe exclusion clause
• What is the RD of Olley v Marlborough Court hotel?

  Any attempt to introduce new terms to the contract after acceptance will fail.
• What case has the RD of 'Any attempt to introduce new terms to the contract after acceptance will fail.' ?

  Olley v Marlborough Court Hotel
• what is the RD of Chapelton v Barry Urban DC

  there must be a contractual document, with reference to the distinction between this and a receipt.
• Which case has the RD of 'there must be a contractual document, with reference to the distinction between this and a receipt.' ?

  Chapelton v Barry Urban DC
• What is the RD of Thompson v LMS railways?

  There must be reasonable steps to draw the exclusion clause to the other parties attention
• Which case has the RD of #There must be reasonable steps to draw the exclusion clause to the other parties attention.' ?

  Thompson v LMS railways
• What is the RD/significance of the case of Thornton v Shoe Lane Parking in terms of exclusion clauses?

  When using an automated machine, the contract is formed at the moment payment is made. Any exclusion clause must be presented before or at the time of accepting the offer; otherwise, it is not incorporated into the contract.
• What case has the following RD in exclusion clause contract law, 'When using an automated machine, the contract is formed at the moment payment is made. Any exclusion clause must be presented before or at the time of accepting the offer; otherwise, it is not incorporated into the contract.' ?

  Thornton v Shoe Lane Parking
• What are the brief facts of the case of Thornton v Shoe lane parking ?

  The claimant used an automated car park, paying at a machine before receiving a ticket. After being injured in the car park, the company tried to rely on an exclusion clause printed on the ticket. The court ruled the contract was formed when payment was made, so the clause was not incorporated.
• What is the RD of the case of McCutcheon v David MacBrayne, and Hollier v Rambler Motors?

  If the parties have dealt on the same terms in the past, it is possible to imply knowledge of the clause through these previous dealings
• What cases has the RD of 'If the parties have dealt on the same terms in the past, it is possible to imply knowledge of the clause through these previous dealings.' ?

  McCutcheon v David MacBrayne and Hollier v Rambler Motors
• What are the facts of McCutcheon v David MacBrayne?

  The clause had not been successfully incorporated into the contract. McCutcheon could not be bound by a clause on the basis of a previous course of dealing when he did not have knowledge of the specific term. Previous dealings are only capable of importing a term into a later contract where actual or constructive knowledge of the terms is established, and the parties assent to them.
• what is the facts of the case of Hollier v Rambler motors?

  Hollier was successful in his claim. Three or four occasions in five years wasinsufficient to amount to a course of dealing and the exclusion clause had not, therefore, been imported into the oral contract
• What is the contra proferentem rule?

  if the meaning or scope of a term is uncertain, the term should be interpretedleast favourably against the person who introduced it, and who seeks to rely on it.
• What is the RD of Transocean Drilling v Providence resources?

  The contra proferentem principle is an approach to be used where the term is both one sided and ambiguous. If the words are clear, then the rule is notused.
• what case shows how 'the contra proferentem principle is an approach to be used where the term is both one sided and ambiguous. If the words are clear, then the rule is not used.', ?

  Transocean Drilling v Providence resources
• When is the unfair contract terms act 1977 used in terms of exclusion clauses?

  it applies to both tort and contract law (business – business)
• What statute is used to govern exclusion clauses in a business - business contract?

  Unfair contract terms act 1977
• What statute is used to govern exclusion clauses in contracts between a trader and a consumer?

  Consumer rights act 2015
• In terms of exclusion clauses, when is the consumer rights act 2015 used?

  In contracts between traders and consumers
• what does section 2(1) of the unfair contract terms act 1977 say?

  A person cannot exclude liability for death or personal injury caused by negligence
• Which section and subsection of what legislation states that a person cannot exclude liability for death or personal injury caused by negligence?

  Section 2 ( 1 ) of the unfair contract terms act 1977
• What does section 2 ( 2 ) of the unfair contract terms act 1977 say?

  Other loss or damage cannot be excluded or limited for negligence unless it is reasonable to do so.
• Which section, and subsection of what legislation states that other loss or damage cannot be excluded or limited for negligence unless it is reasonable to do so?

  Section 2 ( 2 ) of the unfair contract terms act 1977