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EXCLUSION CLAUSES - Coggle Diagram
EXCLUSION CLAUSES
STAGE 1 - INCORPORATION
Notice - Parker v South East Railway Co
reasonable notice must be given as to existence of clause
Reasonable notice must be given before or at the time contract is made (but not after)
Thompson v London Midland and Scottish Railway Co 1930
Previous course of dealings
2 requirements must be met before courts will infer term based on previous dealing :
must be sufficient notice of clause
must be consistency in previous dealings
SPURLING V BRADSHAW
MCCUTCHEON V DAVID MACBRAYNE LTD 1964
Signature - L'estrange v Graucob
Curtis v Chemical Cleaning & dyeing Co [1951]
STAGE 2 - CLAUSE MUST PASS THE TEST OF 'CONSTRUCTION'
CONTRA PROFERENTUM RULE
Key method used by courts to construe an exclusion clause
courts interpret the clause strictly against the party wishing to rely on the clause
if there is any doubt or ambiguity in the phrases/words used, court will adopt an interpretation of that clause adverse to party seeking to rely on it
HOUGHTON V TRAFALGAR INSURANCE CO LTD 1954
CONTRA PROFERENTUM RULE AND NEGLIGENCE
Contractual liability - innocent party is not required to prove fault in order to bring an action for breach of contract
liability in negligence - innocent party requires to prove fault
canada steamship lines ltd v the king
DOCTRINE OF FUNDAMENTAL BREACH
unfair contract terms act 1977
STAGE 3 - CLAUSE MUST SATISFY THE RELEVANT STATUTORY PROVISIONS
KEY STATUTORY PROVISIONS -
THE CONSUMER RIGHTS ACT 2015
UNFAIR CONTRACT TERMS ACT 1977