Exemption Clauses PDF

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Exemption Clauses...

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We can have a casual agreement/contract in english law (no strict formalities) However this lends a hand to disagreements in future May assume a heavy duty to the officious bystander test and the objective person's view of the contract In the absence of a signature, any clause not reasonably brought to the notice of the offeree before the time of acceptance of the offer (the making of the contract) is not incorporated Olley v Marlborough Court (where the pile of deckchairs is the offer and hands over cash, which is acceptance - the ticket which is then given is then too late and the exclusion clauses were not incorporated in the terms)/Thornton v Shoe Lane Parking 1971 Therefore, there can be no reliance upon contractual terms contained in orders or invoices where reasonable notice of their existence was not given to the contracting party on entering the contract (they do not need to have read or know the terms) A higher degree of notice is required for unusual or onerous terms to prevent reliance on terms not fairly and reasonably brought to the attention Interfoto Pictures Library v Stiletto Visual Programmes

Interpretation of Terms: ● Hollier v Rambler Motors ● Clauses now regulated by statutory provisions and the basic construction test propounded by Lord Briggs in George Mitchell v Finney Lock Seeds; a clause is to be construed on its natural and ordinary meaning to see if it covers what happened ● Kudos Catering v Manchester Central Convention Complex; this ^^ rule was overturned and the scope of exclusion clauses as interpreted to give effect to what must have been the parties commercial intentions Courts: ● The courts will not imply any exemption greater than that contained within the words used ● High degree of notice if there is an onerous clause, (if you want to rely on the clause you must have a high degree of notice) Interfoto ● Andrews Bros v Singer Co ● Where the meaning of the clause is ambiguous, the ambiguity will be resolved against the party seeking to rely on the clause ● The courts are unwilling to extend the scope of an exclusion clause to liabilities other than contractual especially excluding liability in **negligence**Canada Steamship v The King 1952 Liability: ● Negligence liability for the purposes of exemption clauses will include breach of duty of care in tort ● Canada Steamship embodies basic judicial policy of limiting the scope of the exclusion clause by restriction operation so that generally, they exclude only strict contractual liability ● The word negligence must be used

In this Case( Tony and Neil): ● Shake hands and then the terms are given = terms incorporated after the contract signed so no incorporation ● Aide memoire- not brand new terms, just a repetition and evidence of the contract as already signed ● Ipswich Plant Hire = how many courses of dealings? Is one enough? Possibly, this is down to bargaining powers, but also the fact that in the Ipswitch case, it was a term that was considered to be a standard across all construction contracts (reasonable to foresee) ● If this is an onerous clause, then Neil should put effort into it, and it’s not clear that he has (drawing it to Tony’s attention) ● Courts on interpretation; 1. Is it incorporated 2. Does it cover the breach 3. They then have to construe the contract 4. If you want to exclude negligence you must expressly use that word or a direct synonym ● The wording of Neils terms; two clauses to the terms? “The contractor” and then “..of any other party..” ● Doesn’t use the word negligence in reference to himself so he is not excluding liability (clause 1) ● Does clause 2 protect Clement for any claims in negligence? Does it say if Clement is negligent - go to his insurer not mine? In this case he is not excluding liability for negligence, he’s just directing it in a particular direction ● Sometimes exemption clause is about redirecting responsibility not excluding liability ------● If the clause did exclude liability then; ● S2(1); broken leg (excluding liability for personal injury) ● S2(2); broken car (you can exclude liability but only under the scope of what is reasonable)...