Essay Framework for Evaluation Questions – Section B’s, Q.3 (25 marks)
10 marks AO1 DESCRIBE 15 marks AO3 EVALUATE
Point of Law AO1 Description of the law AO3 Issue/Criticism AO3 Why a problem AO3 Why not a problem
Under the Unfair Contract Terms Act This is fair This works well because this In addition to this it also works well
Can’t exclude 1977 s2(1) any clause which attempts prevents someone keeping seeing that it may encourage
to exclude liability for death or personal an unsafe premise etc and people to keep safer premise and
liability for injury is void preventing those in danger try to avoid personal injury/ death if
personal injury or from being able to claim for they know it isn’t possible to
death the injury/ death caused to exclude liability. It also ensures
them that everyone maintains their right
to be safe.
5 questions are asked to see if the It would seem that this This is fair seeing that the This area of the law seems to be
exclusion clause is reasonable. could be considered to be questions asked adhere to fair to both parties as it doesn’t
What were the relative bargaining quite fair to both the offeror both parties to see if it would favour either side more than the
strengths of the parties? Was the and offeree be reasonable. For example other and protects the rights of
Exclusion offeree given an inducement to agree if the offeror had more both parties
clauses relating to the clause? Did the customer know bargaining power then to be
to breaches of about the extent of the clause? Could fair to the offeree an
implied terms in the offeree have entered into a similar exclusion clause is unlikely to
contract with another but without be allowed however if the
SGA79 & having to accept a similar term? Were customer knew the extent of
SGSA82 the goods manufactured, processed or the clause and agreed they
adapted to the special order of the can’t change there minds
customer? after they have accepted the
offer as this would be unfair
to the offeror
For a term to be incorporated it must This is relevant where If the parties were free to In addition to this it stops parties
be made available before the offer is harsh terms form a clause contract without restrictions from burying unfair contract terms
accepted (Thornton v Shoe Lane of the contract (L’estrange this could lead to one party in lengthy documents. This is
Parking) v Graucob) deliberately disguising or especially true in online documents
Terms must be Signing the contract incorporates the omitting mention of a harsh where there is an option to just
properly terms even if they have not been read term before acceptance has accept the terms. Exclusion and
incorporated into (L’Estrange v Graucob) occurred which could lead to limitation clauses can also be
the contract Signature will not incorporate terms if a party being in a contract disguised in what may not be seen
what was signed was not a contractual without fully consenting to to be a contractual document such
document (Grogan v Meredith Plant the nature and extent of what as a receipt or ticket (Thornton v
Hire) it entailed. Shoe Lane Parking Ltd). Common
Particularly harsh or unusual terms law controls help to avoid this as
must be brought to the attention of the they protect parties in situations
other party or be made prominent such as these where they have
(Interfoto v Stiletto Productions) been misled
Consumer Rights S62 Contracts have to be fair in order This is fair This is fair as it limits a trader This helps the consumer to
10 marks AO1 DESCRIBE 15 marks AO3 EVALUATE
Point of Law AO1 Description of the law AO3 Issue/Criticism AO3 Why a problem AO3 Why not a problem
Under the Unfair Contract Terms Act This is fair This works well because this In addition to this it also works well
Can’t exclude 1977 s2(1) any clause which attempts prevents someone keeping seeing that it may encourage
to exclude liability for death or personal an unsafe premise etc and people to keep safer premise and
liability for injury is void preventing those in danger try to avoid personal injury/ death if
personal injury or from being able to claim for they know it isn’t possible to
death the injury/ death caused to exclude liability. It also ensures
them that everyone maintains their right
to be safe.
5 questions are asked to see if the It would seem that this This is fair seeing that the This area of the law seems to be
exclusion clause is reasonable. could be considered to be questions asked adhere to fair to both parties as it doesn’t
What were the relative bargaining quite fair to both the offeror both parties to see if it would favour either side more than the
strengths of the parties? Was the and offeree be reasonable. For example other and protects the rights of
Exclusion offeree given an inducement to agree if the offeror had more both parties
clauses relating to the clause? Did the customer know bargaining power then to be
to breaches of about the extent of the clause? Could fair to the offeree an
implied terms in the offeree have entered into a similar exclusion clause is unlikely to
contract with another but without be allowed however if the
SGA79 & having to accept a similar term? Were customer knew the extent of
SGSA82 the goods manufactured, processed or the clause and agreed they
adapted to the special order of the can’t change there minds
customer? after they have accepted the
offer as this would be unfair
to the offeror
For a term to be incorporated it must This is relevant where If the parties were free to In addition to this it stops parties
be made available before the offer is harsh terms form a clause contract without restrictions from burying unfair contract terms
accepted (Thornton v Shoe Lane of the contract (L’estrange this could lead to one party in lengthy documents. This is
Parking) v Graucob) deliberately disguising or especially true in online documents
Terms must be Signing the contract incorporates the omitting mention of a harsh where there is an option to just
properly terms even if they have not been read term before acceptance has accept the terms. Exclusion and
incorporated into (L’Estrange v Graucob) occurred which could lead to limitation clauses can also be
the contract Signature will not incorporate terms if a party being in a contract disguised in what may not be seen
what was signed was not a contractual without fully consenting to to be a contractual document such
document (Grogan v Meredith Plant the nature and extent of what as a receipt or ticket (Thornton v
Hire) it entailed. Shoe Lane Parking Ltd). Common
Particularly harsh or unusual terms law controls help to avoid this as
must be brought to the attention of the they protect parties in situations
other party or be made prominent such as these where they have
(Interfoto v Stiletto Productions) been misled
Consumer Rights S62 Contracts have to be fair in order This is fair This is fair as it limits a trader This helps the consumer to
