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CAN I EXEMPT A CLAUSE?, WAS the EC restricted by UCTA? Unfair Contract…
CAN I EXEMPT A CLAUSE?
is it properly incoperated?
Is the clause properly construed to
cover a breach?
is the clause restricted by UCTA?
WAS the EC restricted by UCTA?
Unfair Contract Terms Act
UCTA applies when EC excludes business liability
EC not allowed when negilgence results in injury / death
If negligence leads to loss or damage,
EC is allowed if it is reasonable
If contract is with consumer / parties use a standard contract, EC is allowed if reasonable
is the clause properly
INCOPORATED?
contract is signed
person signing is bound
clause is incorporated by
proper notice
Time
it is brought to notice
of the other party before
the contract has been concluded
Adequacy
the clause was at a place where people
would reasonably find the contractual terms
previous course of dealings
XX and XX has been doing business for
many years together (must be reasonable)
Does the clause cover the breach
is it properly construed
Contra Proferentem Rule
RULE AGAINST THE MAKER
court will interpret the clause
in a way that helps the weaker party
if it is ambigous, they will argue against the
party that puts it forth
Negligence Liability
APPLY IN CASES OF NEGLIGENCE
the clause is NOT APPLICABLE if it
does not clearly cover negligence
for the plaintiff to prove that the defendent owes
them a duty of care, if this duty is breached, they will
suffer foreseeable harm
WAS the EC Reasonable
Not reasonable if
party who relied on EC
has stronger bargaining power
if the customer was induced
to agree with the EC
Can be reasonable if
customer's requirments could be met in other ways
customer ought to have known the
existence and extent of the EC
EC is reasonable practicable