What are the three things to consider regarding exemption clauses?
- Incorporation
- Construction
- Statutory controls
What is the general rule for construction of exemption clauses?
Contra proferentem – any doubt as to meaning or scope of EC, will be resolved against party seeking to rely on it.
When will courts construe a clause in contra proferentum less rigorously?
- where clause merely limits
- commercial parties of equal bargaining power
How can negligence liability be excluded?
Clear words
What is the circumstances where general words are likely to be considered effective for excluding liability for negligence?
Cases where the only basis for liability is negligence
What is the circumstances where general words are likely to be considered ineffective for excluding liability for negligence?
Cases where the party will be liable irrespective of negligence
What does the Unfair Terms Act relate to?
Contracts between businesses
Can negligence liability be excluded under UCTA for death or personal injury?
No
Can negligence liability be excluded under UCTA for loss other than death/personal injury?
Yes if reasonable
Can negligence liability be excluded under UCTA for breach of statutory implied terms about quality of goods?
Yes if reasonable
Can a party exclude liability for breach of contract if the exclusion clause is in their ‘standard terms’? (UCTA)
Yes if reasonable
Can a party rely on a contract term claiming to be entitled to render a performance substantially differnet to what is reasonably expected? (UCTA)
Yes if reasonable
Can a party rely on a contract term claiming to be entitled to render no performance at all? (UCTA)
Yes if reasonable
What is the reasonableness test in UCTA?
- Fair and reasonable to be included
- Having regard to circumstances which were/ought reasonably to have been known
What are the schedule 2 considerations in the UCTA?
- bargaining power of parties
- inducment to enter agreement
- customer lnew/ought to have known extent of term
- reasonable to expect compliance with term
- goods made to special order
Can a party exclude/restrict liability for death/personal injury from negligence? (CRA)
No
Can a party exclude/restrict liability for statutory terms implied for goods? (CRA)
No
Can a party exclude/restrict liability for statutory implied terms for digital content? (CRA)
No
Can a party exclude/restrict liability for statutory implied terms for services? (CRA)
- cannot entirely exclude term for service to be performed with reasonable care and skill
- cannot limit liability for service to be performed with reasonable care and skill if consumer cannot recover paid price
What is the general rule regarding exemption clauses in CRA?
not binding if unfair
What is unfair in terms of the CRA?
- contrary to good faith
- causes significant imbalance in parties rights/obligations to detriment of consumer
What cannot be assessed for fairness?
- terms specifying main subject
- price if:
- transparent
- prominent
What are the anti avoidance prohibitations in the CRA?
- cant have separate contract not to pursue claims
- cant make eenforcement conditions onerous
