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L9 ~ Exclusion ClausesTuesday, December 7, 2021 15:07
Definitions ~
-Exclusion : a term which appears to exclude or restrict a liability or legal duty which
-clause does 2 things ::
-Exemption clause : express terms in a contract exempting owner of the
-either to exclude liability or a legal duty which otherwise would a
-Limitation clauses: limit feather than exclude liability.limiting to a certa
-to strict a liability or legal duty .
Challenges of Exclusion clauses ~
-used mostly in standard form contracts
-take it or leave it — not much if any room to negotiate — e.g. terms and con
-mostly take away the rights of the weaker party
-ie a big corp (e.g. WhatsApp) is taking away from its users (the people)
-its efficiency-certainty and allocation of risk and reducing transactions coasts and l
-Freedom of contract v consideration of fairness ::
-parties entered into the contract freely — so therefore these terms are usua
-HOWEVER the parties aren’t equal and legal intervention is sometimes need
Control of exclusion clauses and unfair terms ~
-common law ::
-incorporation of terms
-special interpretation rules
-Controlling content of contract through statutes ::
-unfair contract terms act [1977]
-consumer rights act [2015]
Incorporation of terms — Ref Lecture 7 ~
-has the incorporation been properly incorporated?
-incorporation techniques ::
-signature
-reasonable notice ::
-3 requirements :
-notice must be given before or at the time of contracting —
-Olley v Marlborough court [1949] —>
-in the hotel room on the back of the door a notice s
any lost, stolen or damaged property.
-the claimant had a fur coat stolen.
-Court held that the notice was ineffective
-Thornton v shoe lane parking [1971] —>
- a clause cannot be incorporated after a contract has
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