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TERMS OF THE CONTRACT II (Interpretation/Construction (Common law)…

- - - - If a person desires to exempt themselves from common law rules, words must not be ambiguous
        
        If there are two possible heads of liability (strict contractual & negligence), clause will only exempt from strict contractual liability
- - - - Strength of bargaining position?
        
        What interests can the employer protect? Trade Secrets/Business Connections
    - - Nordenfelt v Maxim Nordenfelt Guns & Ammunition Co
        Was applicable
        
        trade contract
        
        Nordenfelt earned a large sum out of the contract
        
        Lord Macnaghten:
        
        It must be in the interest of the parties & public
        
        Reasonableness - affording adequate protection
        
        Lord Herschell:
        
        What are the restraints?
        
        Does it go no further than protect the party by applying the restrain?
- - - - First limb:
        
        s62(4) & s62(5)
        
        Aziz v Caixa d'Estalvis de Catalunya
        
        Menendez Alvarez (Significant imbalance)
        
        Bryen & Langley Ltd v Boston (Nature of the subject matter of the contract)
        
        Grey list:
        
        Terms which are automatically unfair
        
        s31(1), s65(1), s63(6)
        
        Contra proferentem rule
        s69(1)
      - Second limb:
        
        Generally to all terms
        
        Exceptions: not individually negotiated terms, s64, s73
        
        To be excluded:
        (i) a core term
        (ii) transparent and prominent
        
        DG of Fair Trading v First National Central Bank
      - Third limb:
        
        s71