Exemption clauses

• What are exemption clauses?

  terms in a contract that state a party is not responsible for certain matters
• What is an exclusion clause?

  D is not responsible at all
• What is a limitation clause?

  D is only responsible to a certain extent
• What must exemption clauses be?

  a term in the contract, not over-ruled by an oral statement, conform to statute law
• What is a term within the contract?

  rules for incorporation apply

  sufficient notice for the other party

  term must be present at the time of the contract.
• A term must be present at the time of the contract to be incorporated.
• What is the rule in L'Estrange?

  A person is bound by a document he sign whether he reads it or not.
• What if a term is unusual or harsh?

  It must be brought to the attention of the other party.
• How will you bring a term to the attention of the other party?

  Highlight it, in bold, beginning of the contract
• Olley v Marlborough Court Hotel, contract formed at the reception and exemption clause on the back of the hotel room door came too late to be incorporated.
• In Dillon v bolting shipping, contract was formed with the booking form and exemption clause contained on tickets which came later so too late to be incorporated.
• What case was the contract formed at the hotel reception?

  Olley v Marlborough Court Hotel
• In what case was the contract formed with the booking form?

  Dillon v Baltic Shipping
• In what case was the contract formed at the barrier?

  Thornton
• In McCutcheon v David MacBrayne Ltd, C used the ferry regularly but did not always buy his ticket from the office so it was not considered regular and consistent to include the exemption clause in the office.
• In what case did C use the ferry regularly?

  McCutcheon v David MacBrayne Ltd
• In Parker, a receipt for left luggage was a contractual type of document as it was recquired to get left luggage back so the exemption clause on it was included in the contract.
• What case is a contractual type of document?

  Parker
• An oral statement can over rule an exemption clause. This means it does not apply to that contract.
• what does an oral statement do?

  Over-rule an exemption clause
• In Mendelssohn v Normand, when a customer was told not to lock their car, the exclusion clause for theft did not apply to the contract.
• What case was the customer told not to lock their car?

  Mendelssohn v Normand
• In Curtis, when the customer was told the exemption clause only applied to sequins and beads, it was not part of the contract so she could claim for damage to the dress.
• In what case could C claim for damage to the dress?

  Curtis
• The Unfair Contract Terms Act 1977 states a contract cannot exclude liability for death or presonal injury from negligence. Other Liability from negligence can be excluded only if it is reasonable. A term cannot exclude liability for a failure to perform unless it is reasonable.
• Reasonable means fair given the circumstances.
• In Warren v Truprint, replacement film for loss of photogrpahs was not reasonable as C lost silver wedding photos.
• Consumer Rights Act 2015, S62 states consumer contracts and terms should be fair. It is unfair if it disadvantages a consumer, limits their rights, increases their obligations out of proportion. The main terms will not be unfair if they are both transparent to the consumer and prominent.