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Title: CONTRACT LAW – Exemption clauses (lecture 11)
Description: CONTRACT LAW – Exemption clauses (lecture 11). Incorporation and construction.
Description: CONTRACT LAW – Exemption clauses (lecture 11). Incorporation and construction.
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CONTRACT – Exemption clauses (lecture 11)
An exemption clause is a term ‘which excludes or modifies an obligation, whether primary (in the contract) or general secondary (obligation to pay
compensation)…that would otherwise arise under the contract by implication of law
...
Effect of an exemption clause – the
definitional view (laissez faire) OR the exclusory approach (paternalistic and interventionist)
...
They will
give the clause its natural and ordinary
meaning ie does the clause cover the
breach, whether fundamental or otherwise?
– George Mitchell v Finney Lock Seeds
...
REASONABLE NOTICE
Proferens must take reasonable steps to
bring the term to the other party’s notice –
Parker v South Eastern Railways
Incorporation by reference? (refer to
another document)
...
Contra Proferentum: any ambiguity in
the clause will be construed against the
proferens – Andrews brother v singer &
co; Houghton v Trafalgar insurance co ltd
...
Excluding liability for negligence
...
Apply: The Canada Steamship Test per
Lord Morton
a)Does clause specifically refer to
negligence OR synonym of negligence? –
Monarch Airlines Ltd v London Luton
Airport ‘any act or omission, neglect or
default’
...
If onerous clause, greater notice required Thornton v Shoe Lane parking; Interfoto
picture library v stiletto visual
programming
...
If
negligence is too wide, it fails
...
NB
...
Exnor Craggs Ltd or fraud
...
Onerous clause
A written document or notice which
includes the clause must be one which has
contractual effect (not time sheets or
receipts)– Chapleton v Barry UDC;
Grogan v Meredith
...
COURSE OF DEALING
Must be consistent and regular –
McCutcheon v David MacBrayne
3/ 4 times in 5yrs – not incorporated –
Hollier v Rambler Motors
3-4 times a month for 3 years –
incorporated – Harry Kendall & Sons v
William Lillico & Sons
5 times over 13 months – incorporated –
Petrotrade inc v Texaco
...
The (obsolete) doctrine of fundamental
breach
Cannot exclude liability for ‘fundamental
breach’
...
Also Contract (Rights of Third Parties
Act) 1999 – s1(6) and s6(5) can exempt
third parties
Title: CONTRACT LAW – Exemption clauses (lecture 11)
Description: CONTRACT LAW – Exemption clauses (lecture 11). Incorporation and construction.
Description: CONTRACT LAW – Exemption clauses (lecture 11). Incorporation and construction.