• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Exclusion clause

Extracts from this document...

Introduction

EXCLUSION CLAUSE An exclusion / exemption clause is a clause which if incorporated in the contract will entitle the party seeking to rely on it to exclude or exempt all the liabilities arising from a breach of contract. (And a limitation clause only seeks to limit the liabilities arising from a breach of contract). In order for a party to rely on an exclusion clause he has to first show that clause was incorporated as a term of the contract. At common law an exclusion clause can be incorporated in two ways: by advance notice to the other party that the exclusion clause is to be a term of the contract, & by the signature of the party agreeing to be bound by the exclusion clause. A notice can be given in three ways: notice by display (Olley v. ...read more.

Middle

Once it is judged that the exclusion clause has been properly incorporated a further question arises as to the validity of the clause under the Unfair Contract Terms Act 1977 (hereinafter UCTA). The UCTA applies to contract terms & to notices which are non-contractual, & which purport to exclude or restrict liability in tort. It seeks to limit the circumstances in which terms notices restricting or limiting liability may apply, but it does not affect the basis of liability, nor does it apply to any other 'unfair' terms. The Act is concerned to protect primarily the person who deals as a consumer. Sec. 1(3) of UCTA provides that the Act applies where a party seeks to exclude his business liability. Sec.12 provides that a party "deals as consumer" if he neither makes the contract in the course of a business nor holds himself out as doing so. ...read more.

Conclusion

Reasonableness has therefore to be judged by reference to the time of contracting. In determining whether a clause is reasonable shall be had to the 'Guidelines' set out in Schedule 2 of the UCTA. These guidelines refer to such matters as the bargaining strength of the parties, & whether the customer had received an inducement to agree to he clause, or whether in accepting it, had an opportunity to enter into a similar contract without having to accept a similar term. In George Mitchell v. Finney Lock Seeds Ltd. It was indicated that the courts would also take into account the resources of the parties concerned & availability of insurance to the party seeking to rely on the clause. In Smith v. Eric S Bush it was suggested that in deciding whether an exclusion clause met the requirement of reasonableness the matters discussed above should always be taken into account. 666 Mehdi Afif Contract Law ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Law of Contract section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Law of Contract essays

  1. Marked by a teacher

    Contract Law - Offer And Acceptance

    3 star(s)

    The buyers issued a writ claiming damages for breach of the contract. The House of Lords held that the service of the writ should be set aside because the contract had not been made within the court's jurisdiction. Lord Wilberforce stated that the present case is, as Entores itself, the

  2. unit3 law of tort

    'servitudes' are rights of third parties that exist over land, e.g. rights to light, rights to support, rights of way, rights to graze animals, fishing rights, etc.). Private nuisance, as can be seen, can be further subdivided into two categories: Indirect interference causing material damage Such as, smoke, gas, heat, vibrations, and Roots (of trees).

  1. Four ways in which a contract may be discharged.

    "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e.

  2. I have been asked to advise a client on considering contracting with a building ...

    Contracts by deed Contracts made by deed must be in writing, signed and witnessed. Contracts that in deed will include leases of three or more years, a conveyance or transfer of a legal estate in land (including a mortgage) as this is the completion on a sale of a house or land.

  1. "There are occasions where terms are implied into contracts which have never been discussed ...

    This amendment replaced 'merchantable' with 'satisfactory', a concept that should be easily understood by consumers generally. The definition of satisfactory laid out in S14(2)(b) includes: fitness for all purposes for which good of the kind on question are commonly supplied; appearance and finish; freedom from minor defects and safety and durability.

  2. DIFFEERENT AREAS OF CONTRACT LAW

    Rule of thumb for one wishing to enforce a Restrictive covenant is not to put unruly excessive terms and to do no more than necessary to protect legitimate business interests but Scottish courts will determine what is reasonable. If worthy then court will issue an interdict to prevent employment in

  1. LAW OF CONTRACT. LAW 103. THE CONTENT OF THE CONTRACT.

    Terms implied in law. These are terms which the law dictates are present in certain types of contract. "In deciding whether to imply a term in law, the courts are guided by general policy considerations affecting the type of contract in question; and to this extent considerations of reasonableness and fairness may enter into the implication of such terms."

  2. In advising Bennys position of the interest over the said property (the flat), it ...

    Notwithstanding this, the courts cannot possible to do such assessment in without of contribution to the purchase price, because "the flat" was free of mortgage. Did Benny have further assistance in absence of common intention and contribution to the purchase price by way of constructive trust?

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work