Chen- Wishart
Chapter 10 - 10.5
And Chapter 11 - 11.1, 11.2, 11.3, 11.4, 11.5.5
What sort of things
- Car park excluded liability for injury to customer
- Seed Merchant Limiting Liability for Sending Wrong and Useless seeds (meaning no crop) to cost of seed
- Home Surveyor Excluded Liability to house buyer for negligent survey given to lender
1. Is the clause in the contract?
2. Does the CLause cover the breach?
3. Does UCTA ban the Clause completely? (Non consumer Contract)
4. Does UCTA require the clause to be reasonable? (non consumer contract)
5. Does CRA ban the clause completely? (consumer Contract)
6. Does CRA require the clause to be fair? (consumer contract)
Plan
- Three steps
1. Did the Clause make it into the contract?
2. If it did, does it work?
3. If it does what does the statute say?
Early Weapons
- Did it get into the contract
- What does it mean?
A new Weapon
- Unfair Contract Terms Act 1977
Another New Weapon
- Consumer rights act 2015
Did it gen in - incorporation
- Olley v Marlborough court
- Notice on back of hotel room door
- Contract made, where?
- Thornton v Shoe Lane PArking LTd
- Machine at car park Entrance
- When is a contract made?
- Notice Inside Car PArk
Receipts
- Chapelton v Barry UDC
- Receipt was not a contractual document
How to Incorporate
(i) SIgnature or
(ii) consistent course of previous dealings/ trade usage or
(iii) by reasonable or proper notice
, Signature
- L’Estrange v Graucob
Previous course of dealing
- Spurling v Bradshaw - consistent over many years
- McCutcheon v David MacBrayne Ltd - not consistent - this was oral previously written
Trade Usage
- British Crane Hire Corporation v Ipswich Plant Hire Ltd - both parties in same trade and both used same
exclusion with their own customers
- Term was in contract when one firm became customer of the order
Reasonable Notice
- Parker v S.E.R - ticket said see back. On the back was a clause excluding liability for any package exceeding £10
in value
- Olley v Marlborough Court - needs prominent public notice which was plain to see when the contract was made
or an express oral stipulation
Thornton v Shoe Lane Parking
- This clause was so destructive of the CL’s rights that it would need to be painted in the red in with a red hand
pointing to it (or something equally startling)
Goodlife Foods Ltd v Hall Fire PRotection Ltd 2018
- Clause not buried in raft of small print
- An express standard condition
- Claimant had never suggested that it had not read or understoof the terms
- Unrealistic to say that the clause was not fairly and reasonably brought to the claimants attention
Misrepresentation of the term
- Curtis v Chemical CLeaning Co Ltd - said claud meant sequins not covered.
- Held; clause restricted to that meaning
Does the Term cover the breach
Contra Proferentem
- Contra as in contra-flow
- Proffer as in Present
Wallis, son and wells v Pratt and Haynes
‘Sellers give no warranty express or implied as to the growth, description or any other maters’
Type of seed was a condition - clause did not affect conditions
Andrews Bros (Bournemouth) LTd v Singer & Co -’ .. all conditions, warranties and liabilities implied by statue, common
law or otherwise are excluded’ - did not cover express terms
George Mitchell v Finney Lock Seeds
- Lord denning, referring to the use of the contra proferentem rule
- ‘They used it with great skill and ingenuity. They used it so as to depart from the natural meaning of the words
of the exemption clause and to put upon them a stained and unnatural construction
Modern Approach
Photo Production Ltd v Securicor Transport Ltd -
Need for strained constructions to achieve the courts’ objectives was remove by UCTA
Chapter 10 - 10.5
And Chapter 11 - 11.1, 11.2, 11.3, 11.4, 11.5.5
What sort of things
- Car park excluded liability for injury to customer
- Seed Merchant Limiting Liability for Sending Wrong and Useless seeds (meaning no crop) to cost of seed
- Home Surveyor Excluded Liability to house buyer for negligent survey given to lender
1. Is the clause in the contract?
2. Does the CLause cover the breach?
3. Does UCTA ban the Clause completely? (Non consumer Contract)
4. Does UCTA require the clause to be reasonable? (non consumer contract)
5. Does CRA ban the clause completely? (consumer Contract)
6. Does CRA require the clause to be fair? (consumer contract)
Plan
- Three steps
1. Did the Clause make it into the contract?
2. If it did, does it work?
3. If it does what does the statute say?
Early Weapons
- Did it get into the contract
- What does it mean?
A new Weapon
- Unfair Contract Terms Act 1977
Another New Weapon
- Consumer rights act 2015
Did it gen in - incorporation
- Olley v Marlborough court
- Notice on back of hotel room door
- Contract made, where?
- Thornton v Shoe Lane PArking LTd
- Machine at car park Entrance
- When is a contract made?
- Notice Inside Car PArk
Receipts
- Chapelton v Barry UDC
- Receipt was not a contractual document
How to Incorporate
(i) SIgnature or
(ii) consistent course of previous dealings/ trade usage or
(iii) by reasonable or proper notice
, Signature
- L’Estrange v Graucob
Previous course of dealing
- Spurling v Bradshaw - consistent over many years
- McCutcheon v David MacBrayne Ltd - not consistent - this was oral previously written
Trade Usage
- British Crane Hire Corporation v Ipswich Plant Hire Ltd - both parties in same trade and both used same
exclusion with their own customers
- Term was in contract when one firm became customer of the order
Reasonable Notice
- Parker v S.E.R - ticket said see back. On the back was a clause excluding liability for any package exceeding £10
in value
- Olley v Marlborough Court - needs prominent public notice which was plain to see when the contract was made
or an express oral stipulation
Thornton v Shoe Lane Parking
- This clause was so destructive of the CL’s rights that it would need to be painted in the red in with a red hand
pointing to it (or something equally startling)
Goodlife Foods Ltd v Hall Fire PRotection Ltd 2018
- Clause not buried in raft of small print
- An express standard condition
- Claimant had never suggested that it had not read or understoof the terms
- Unrealistic to say that the clause was not fairly and reasonably brought to the claimants attention
Misrepresentation of the term
- Curtis v Chemical CLeaning Co Ltd - said claud meant sequins not covered.
- Held; clause restricted to that meaning
Does the Term cover the breach
Contra Proferentem
- Contra as in contra-flow
- Proffer as in Present
Wallis, son and wells v Pratt and Haynes
‘Sellers give no warranty express or implied as to the growth, description or any other maters’
Type of seed was a condition - clause did not affect conditions
Andrews Bros (Bournemouth) LTd v Singer & Co -’ .. all conditions, warranties and liabilities implied by statue, common
law or otherwise are excluded’ - did not cover express terms
George Mitchell v Finney Lock Seeds
- Lord denning, referring to the use of the contra proferentem rule
- ‘They used it with great skill and ingenuity. They used it so as to depart from the natural meaning of the words
of the exemption clause and to put upon them a stained and unnatural construction
Modern Approach
Photo Production Ltd v Securicor Transport Ltd -
Need for strained constructions to achieve the courts’ objectives was remove by UCTA
