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exclusion clauses - Coggle Diagram

- - - - any term which is to be part of the contract must be brought to the attention of the aprties before or at the time of contract
        
        such was the case in olley v marlborough court hotel
        
        teh claiamnt booked into a hotel, teh contract was made at the reception desk where there was no mentaion of the exclusion clause
        
        in the hotel room on the back fo the door, a notice sought to exclude luab8luity of the h9tel propritetors for any lost, stolen or damaged property
        
        the caliamtn ahd her fur coat stolen - the cotnract had already been made by the time taht the claiamtn had seen the ntpice
    - - if teh terms are in a writtemn contract, then that docuemnt must be one which the party would reaosnable believe to have contractual force, as in chapelton v barry urban
    - - a clause is incorproated into the contratc if it has been signed, as in lestrange v graucob
      - HWOEVER
        
        a clause is not incproated if it is made with a msirepresetnaiton, as in curtis v chemical cleaning and dyeing
    - - the party after isgnong will be bound even if he hasnt read o r understood the contract terms
    - - for unsigned docuemtns to be incorproated,a party mist take reasonable steps to bring such a clasue to teh attentopn of the other aprty, as in parker v south eastern railway
    - - the claus eitself does not ahve to be on the docuemtn put forward, it is sufficient that the docuemtn indicateds teh existence of teh clasue and where it can be consulte,d as in thompson, london, midland adn scottish railway
    - - the more unsuaul or onserous the clause, the more that must eb doen to be draw it to the other partys attention
    - - if there are regualr dealinsg between two parties over a certian period of time, an ordianry term of the contratc is deemed incporpated even though there is no express incorproation notice - kendall v lilloco
      - mccutcheon v macbraynbe
        
        if theere are regualr dealibs but claus enot alwaus used, then not incporprated
- - - - again rejected fundamental breach doctirne
      - this means that wheterh an exemption clause excluding a fundamental breach is effective is determined by the urles of cconstruction
        
        so, any exclusion clause can be effective if after examining full circumstances, court finds its not inappropriate
- - - - s2(1)
        
        liability can never be excluded for perosnal injury or detah resulting from neglignece
      - ucta s2(2)
        
        negligence may be excluded forrestricted for any other loss or damage so far as it si reoasnable
      - RULES IN CANADA STEAMSHIP LINES V KING to detremine whetehr a clause excluding neglgience is effecetiv3e or not
        
        does teh clasue contin express langauge exempting a eprosn from the consequence of the negligence - if so , effect must be given to it
        
        if there is no express ref to neglgience, the courts miust consdier whether the words used are wide enough, in their oridnary menaing to cover it
        
        if the words used wide enough, court must then consdier whether liability mayb be based on some ground other than negligene
- - - - alisa craign fishoing v malvern fisjing
- - - - ordinary meaning
      - the general rule si that an exclusion clause must only be cosntrued on its natural and ordianry meaning - see george mitchell v finney lcok seeds
        
        the corust will not infer a greater exclusion clause than that which is present in the clause
      - contra proferentem
        
        teh courts trad beens trict on those who rely on ec to escape liability
        
        any ambiguity in the clausw ill be cosntrued against the interest of the person who relies on it
        
        andrews v singer
        
        therefore, a cotnract term is normally interepreted in favour of the consumer, as in Houghton v Trafalgar insurancen
      - interpretation
        
        whetehr an exclusion clasue is effective depends on teh itnention of the parties atthe time the contract was formed, menaingt that particular attention will be paid to the language that the parties used to express their intent
      - contractual mayttters
        
        the exclusion clause is ineffective if it excludes laibility other than cotnractiual matters
        
        negligence
        
        canada steamshiplines v kings
      - oral agreement
        
        if the exclusion claus eis inconsistent with an oral agreement, the clause will not apply