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15 Cards in this Set
- Front
- Back
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Three stage approach |
1) The clause must be incorporated into the contract 2) The clause must pass the test of construction 3) The clause must satisfy the relevant statutory provisions |
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Incorporation |
1) Signature 2) Notice 3) Previous course of dealings |
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Signature |
A signature represents that a party has read and understood all of the terms in the contract (L'Estrange) The clause will be invalid if there is a misrepresentation (Curtis v Chemical Cleaning) |
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Notice |
1) Must be reasonable 2) Must be given at the time of or before the contract is made (Olley v Marlborough Court) Red hand rule (Thornton v Shoe Lane Parking) Must be in a contractual document (Chapelton v Barry) |
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Red Hand Rule |
Established by Lord Denning in Spurling v Bradshaw = the more onerous the clause, the greater level of notice will be needed. It will need to be more prominent |
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Previous course of dealings |
1) There must be sufficient notice of the clause (Spurling v Bradshaw) 2) The previous dealings must be consistent (McCutcheon v MacBrayne) |
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Construction |
Contra preforentum rule |
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Contra preforentum |
Any ambiguity or uncertainty will be interpreted as strictly as possible against the person relying on the clause This is more lenient with limitation clauses (Ailsa Craig) |
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The two types of liability |
1) Contractual = Strict liability 2) Negligent liability |
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Clauses that seek to exclude negligence |
Canada Steamship 1) Express reference to negligence will exclude it 2) Are the words wide enough to cover negligence? Howsoever caused/arising (Holier 3) Is there concurrent liability? If so the clause covers the strict liability only. (White v John Warwick) |
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Where the only liability is negligence |
There is no need to make an express reference to negligence where the only possible liability is negligence (Alderslade v Hendon Laundry) Usually occurs when providing a service |
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Relevant statutory provisions |
UCTA 1977 for non-consumers CRA 2015 for consumers SGA 1979 for sale SGAS 1982 for hire |
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UCTA 1977 |
S 2 = Negligence S 3 = Breach of contract S 6 = Sale of goods and hire purchase S 7 = Hire (Supply of goods) All subject to reasonableness test S 11 |
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CRA 2015 |
S 62 and 65 = Negligence S 57 = Services S 31 = Goods |
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SGSA 1982 |
S 9 = Satisfactory quality S 13 = Negligence |
