exclusion clauses evaluation

• An exclusion clause is a contractual provision that aims to limit or exclude liability in case of breach of contract or negligence
• Point 1: Parties of unequal bargaining power are often exploited by the stronger side
• Point 2: It is unfair when exclusion clauses are hidden in small print or on the back of a contractual document, like a ticket
• Case 1: Parker v SE Railway - small print on the back of a ticket she hadn't seen was still classed as agreed, showing unfairness in enforcement over 100 years later
• Case 2: Judges rule on unusual or harsh terms, applying the contra proferentem rule against the party relying on it, as seen in Thornton v Interfoto
• Point 3: Allowing exclusion clauses upholds the principle of freedom of contract
• Case: In photo production v Securicor, a business could exclude liability for a fundamental breach of contract (e.g., a security guard burning down a factory) because it had been agreed upon
• Exclusion clauses enable companies to plan ahead and ensure certainty in their agreements
• Point 4: Common law and statutory controls protect businesses and consumers from unfair exclusion clauses
• Some types of liability, like death and personal injury, cannot be excluded according to UCTA 1977 s.2
• However, UCTA's protection for businesses is not as extensive as the Consumer Rights Act, which covers any unfair contract terms
• In conclusion, exclusion clauses serve to protect parties' interests but must be carefully regulated to prevent exploitation and ensure fairness in contractual agreements
• courts approach to exclusion clauses too complex they have figure out whether the clause can be incorporated into a contract, how and how its interpreted
• courts traditionally sceptical of exclusion clauses Lord dennings made comment in thornton v shoe lane parking that there would need to be sufficient notice of the clause that is as startling as written in bold red ink with a hand pointing to it
• unfair to allow terms that allow people to get out of a breach of contract that was their fault photo production v sercuricor attempted to exclude their laibility to injury of their employeeys however their attempt was unsuccessful so you could argue that teh courts have it under control
• if there is clear wording excluding liability in a contract made between two business parties and is agreed by both with no illegitimate pressure (economic duress) could be argued the court has no business to interfere with private affairs unless potentially harmful