Contract - Exemption Clauses

Definition of an exemption clause, and case.

What are the 2 main theories or approaches to exemption clauses?

Why is the Exclusory Approach gaining favour?

When examining the validity of exemption clauses, what is the process of analysis? What are the hurdles the clause must cross in order to be valid?

Where can exemption clauses be found?

What are the 3 ways an exemption clause can be INCORPORATED in contract?

When and how must incorporation occur?

INCORPORATION - REASONABLE NOTICE - CONTRACTUAL DOCUMENT. Give an example where the courts deemed that the document containing the exemption clause was not contractual in nature.

INCORPORATION - How effective is incorporation through signature? Give case law. The is the general rule.

INCORPORATION - The defence of non est factum - 'not my deed'. Explain what it is and give case authority.

INCORPORATION - SIGNATURE -Exceptions to the rule - Give an example of when a term contained in a signed contractual document will not be binding due to an overriding oral assurance.

INCORPORATION - SIGNATURE - What happens if the courts don't believe the document has the 'nature' of a contract?

INCORPORATION - SIGNATURE - will incorporate onerous clause except in extreme circumstances.

INCORPORATION - REASONABLE NOTICE - What are the guiding principles for providing 'reasonable notice' for an exclusion clause. Give case law.

INCORPORATION - REASONABLE NOTICE - What if the plaintiff can't read? What if the relevant terms are on a different document and merely referenced on the ticket in question?

INCORPORATION - REASONABLE NOTICE - what if the terms of a newspaper competition are found in a different edition of a newspaper

INCORPORATION - REASONABLE NOTICE - What if the exclusion terms are in a language the claimant does not understand, and this is known to the defendant?

INCORPORATION - REASONABLE NOTICE - What if there are no clear words on the front of the ticket, directing the customer to the terms on the back?

INCORPORATION - REASONABLE NOTICE -What if the terms are rendered illegible by a date stamp?

INCORPORATION - REASONABLE NOTICE - ONEROUS TERMS. What if a term is particularly onerous or unusual?

INCORPORATION - REASONABLE NOTICE - TIMING. What impact does 'timing' have on the enforceability of exclusion clauses?

INCORPORATION - REASONABLE NOTICE - TIMING. Give case authority that shows how timing has a different impact in cases involving automatic ticket machines, as opposed to face-to-face transactions.

INCORPORATION - A COURSE OF DEALING - An exclusion clause can be implied if, even though there is no written evidence, dealing between parties has been consistent. Give authority.

INCORPORATION - COURSE OF DEALING - Lord Devlin claimed in McCutcheon that the test for knowledge of an exclusion clause in past contracts, to be sufficient grounds for finding an implied exclusion clause, was a subjective one. The plaintiff must know. However this was subsequently rejected by the HoL. Give authority.

INCORPORATION - COURSE OF DEALING - What impact does the fact it's a commercial contract have on courts willingness to find a course of dealing?

INCORPORATION - COURSE OF DEALING - For an implied exclusion clause to be found, dealings must not only have been CONSISTENT, but also REGULAR. Give case authority.

Explain Contra Proferentem

Give an example of the courts using Contra Proferentem in a case involving a road accident.

INCORPORATION - How do courts treat clauses limiting liability from those excluding liability? Case authority.

CONSTRUCTION - Give the case from where we derive our understanding of whether a clause has the proper construction to cover a breach?

CONSTRUCTION - CONTRACTUAL LIABILITY - Give a case that shows the impact of construction on whether courts will find a clause to exlude liability. In this case, the courts used the Contra Proferentem rule to find that the clause excluded implied, but not express terms.

CONSTRUCTION - NEGLIGENCE - How do the courts approach cases involving a clause excludiing liability for negligence on the part of the proferens? What is the 3 stage test, and what is the case?

CONSTRUCTION - NEGLIGENCE - APPLYING CSS - Give case authority that shows more than one possible interpretation of an exemption clause for liability arising through negligence led the courts to find against the proferens.

CONSTRUCTION - NEGLIGENCE - APPLYING CSS - Give case authority that shows where only one possible interpretation of an exemption clause for liability arising through negligence was found, leading the courts to find against the claimant.

Give a case that shows, in commercial contracts where the parties are of equal bargaining power, contra proferuntum has a very limited role.

CONSTRUCTION - NEGLIGENCE - APPLYING CSS - What is the relevance of Canada Steamship rule for to modern commercial negligence exemption clauses? Discuss authority.

Persimmon cont.

EXEMPTION CLAUSES AND THIRD PARTIES - give case law that shows how third parties can take advantage of exemption clauses. Failed.

EXEMPTION CLAUSES AND THIRD PARTIES - give case law that shows how third parties can take advantage of exemption clauses. Succeeded.

STATUTE - 3RD PARTIES AND EXEMPTION CLAUSES. Give statute for exempting 3rd parties.

STATUTE - what's the case that allows us to apply schedule 2 sections 3 and 2 in UCTA?

STATUTE - NEGLIGENCE - How does the Unfair Contract Terms Act (1977) define negligence? There are three categories.

What does section 6(1) of UCTA provide?

What does section 2(1) of UCTA provide?

What does section2(2) of UCTA provide?

What does section 6(1A) of UCTA provide?

How do courts treat s11 and sch 2 of the UCTA 1977?

UCTA - defining 'written standard terms'. What if exclusion clauses on a standard document even if other negotiated documents are included in the total contract, when much of the rest of the contract is individually negotiated?

UCTA - defining 'written standard terms'. What if standard exclusion clauses are used, when much of the rest of the contract is individually negotiated?

What is the significance of timing in s11(1)? "the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made."

Which case can you use to explain the impact of bargaining power in sch2(a) of UCTA?

Persimmon sentence