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Exclusion clauses - Coggle Diagram
Exclusion clauses
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Legislation
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Unfair terms:
- S62 An unfair term of a consumer contract is not binding on the customer
- S62(4) A term is unfair if contrary to the requirement of good faith, it causes significant imbalance in the parties rights and obligations under the contact, to the detriment of the consumer
Statutory bar:
Trader cannot exclude or restrict liability for:
- Death or personal injury due to traders negligence
- Breach of terms implied by CRA 2015 as to goods
- Breach of terms implied by CRA 2015 as to services
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Terms which must be reasonable:
- S2(2) Other liability arising from negligence such as liability for damage to property, can be excluded if it is reasonable to do so
- S3 A term cannot restrict liability for a failure to perform or performance which is substantially different from what was agreed unless it is reasonable
- S11(2) Clauses excluding or limiting liability for breaches of terms implied by the sale of goods act 1979 and supply of goods and services act 1982 must be reasonable
- S11(5) Burden on party inserting the clause into the contract to show it is reasonable in all the circumstances
Construction
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Contra proferentem rule:
- Where there is doubt about an exemption clause, the courts will interpret it against the person that is trying to rely on it Wallis, son and wells v Pratt & Haynes
- The rule is applied with less severity in cases involving limitation clauses George Mitchell v Finney Lock Seeds
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