Exclusion Clauses

Question 1

What is an exclusion clause?

Answer 1

A term that seeks to limit or exclude liability.
## Footnote
Often used to restrict refunds or responsibility.

Question 2

What are common examples of exclusion clauses?

Answer 2

No refunds clauses and clauses excluding liability for injury or death.
## Footnote
These are closely regulated by law.

Question 3

What are the three main areas of control for exclusion clauses?

Answer 3

Incorporation, contra proferentem, and statutory control.
## Footnote
All three must be satisfied.

Question 4

What is the first question courts ask about an exclusion clause?

Answer 4

Whether the clause is a term of the contract.
## Footnote
This depends on incorporation.

Question 5

What case shows that onerous exclusion clauses require clear notice?

Answer 5

Thornton v Shoe Lane Parking.
## Footnote
The more onerous the clause, the clearer the notice required.

Question 6

What case establishes that signed documents incorporate terms?

Answer 6

L’Estrange v Graucob.
## Footnote
Applies even if the term was not read.

Question 7

What is an exception to L’Estrange v Graucob for onerous terms?

Answer 7

Onerous terms must be specifically brought to attention.
## Footnote
Harsh clauses need clear notice.

Question 8

Which case illustrates the onerous terms exception?

Answer 8

Interfoto v Stiletto.
## Footnote
Failure to highlight onerous terms prevented incorporation.

Question 9

What document limitation applies to incorporation of exclusion clauses?

Answer 9

The document must be a genuine contractual document.
## Footnote
Receipts usually do not qualify.

Question 10

Which case confirms this document limitation?

Answer 10

Grogan v Robin Meredith.
## Footnote
Non-contractual documents cannot incorporate terms.

Question 11

What happens if verbal assurances contradict a written exclusion clause?

Answer 11

The verbal assurance overrides the written term.
## Footnote
The exclusion clause will not apply.

Question 12

Which case illustrates verbal assurances overriding written terms?

Answer 12

Curtis v Chemical Cleaning.
## Footnote
Misleading explanation invalidated the exclusion clause.

Question 13

When are exclusion clauses not written into the contract incorporated?

Answer 13

When reasonable notice is given.
## Footnote
Clarity and timing are key.

Question 14

Which case shows unclear notices will not incorporate exclusion clauses?

Answer 14

Chapelton v Barry UDC.
## Footnote
The document was not clearly contractual.

Question 15

Which case shows clear reference can incorporate exclusion clauses?

Answer 15

Parker v South Eastern Railway.
## Footnote
Clear notice allowed incorporation.

Question 16

Which case shows reasonable steps can incorporate exclusion clauses?

Answer 16

O’Brien v MGN.
## Footnote
Reasonable steps made terms binding.

Question 17

How can exclusion clauses be incorporated through course of dealings?

Answer 17

Through regular and consistent prior transactions.
## Footnote
Frequency and consistency are required.

Question 18

Which case shows infrequent dealings are insufficient?

Answer 18

Hollier v Rambler Motors.
## Footnote
3–4 dealings in 5 years was not enough.

Question 19

Which case shows regular B2B dealings can incorporate clauses?

Answer 19

Spurling v Bradshaw.
## Footnote
Consistent written contracts supported incorporation.

Question 20

What is contra proferentem?

Answer 20

Interpreting ambiguous clauses against the party relying on them.
## Footnote
Protects the weaker party.

Question 21

When will contra proferentem apply?

Answer 21

When an exclusion clause is vague or unclear.
## Footnote
Courts rule against the clause’s drafter.

Question 22

Which case applied contra proferentem to favour consumers?

Answer 22

Hollier v Rambler Motors.
## Footnote
The consumer was the weaker party.

Question 23

Which case shows clear and agreed exclusion clauses may be allowed?

Answer 23

Transocean Drilling UK v Providence Resources.
## Footnote
Clear and freely agreed clauses can be enforced.

Question 24

Which statute controls exclusion clauses in consumer contracts?

Answer 24

Consumer Rights Act 2015.
## Footnote
Applies to B2C contracts.

Question 25

What does section 62 CRA 2015 provide?

Answer 25

Unfair terms are not binding on consumers. ## Footnote Based on the fairness test.

Question 26

What is the fairness test under the CRA 2015?

Answer 26

Whether the term causes significant imbalance contrary to good faith. ## Footnote Focuses on consumer protection.

Question 27

What exclusions can never be made under section 65 CRA 2015?

Answer 27

Liability for death or personal injury caused by negligence. ## Footnote These exclusions are always void.

Question 28

What implied terms cannot be excluded under section 31 CRA 2015?

Answer 28

Statutory rights relating to goods. ## Footnote Includes quality and fitness for purpose.

Question 29

Which statute controls exclusion clauses in B2B contracts?

Answer 29

Unfair Contract Terms Act 1977. ## Footnote Applies only to certain clauses.

Question 30

What does section 2(1) UCTA 1977 prohibit?

Answer 30

Excluding liability for death or personal injury by negligence. ## Footnote This is never allowed.

Question 31

What does section 2(2) UCTA 1977 allow?

Answer 31

Excluding liability for property damage by negligence if reasonable. ## Footnote Subject to reasonableness test.

Question 32

What does section 3 UCTA 1977 allow?

Answer 32

Excluding liability for breach of contract if reasonable. ## Footnote Applies mainly to standard form contracts.

Question 33

What is the knowledge test under section 11 UCTA 1977?

Answer 33

Whether the term was reasonable based on what was known at contract formation. ## Footnote Concealment suggests unreasonableness.

Question 34

What factors are considered under Schedule 2 UCTA 1977?

Answer 34

Bargaining power, inducements, knowledge of term, and special orders. ## Footnote Used to assess reasonableness.

Question 35

How does bargaining power affect reasonableness?

Answer 35

Clauses imposed by stronger parties are less likely to be reasonable. ## Footnote Protects weaker parties.

Question 36

How does customer inducement affect reasonableness?

Answer 36

Discounts or incentives may make a clause reasonable. ## Footnote Voluntary agreement matters.

Question 37

How does clarity of terms affect reasonableness?

Answer 37

Unclear terms are likely to be unreasonable. ## Footnote Transparency is essential.

Question 38

How do special orders affect reasonableness?

Answer 38

Goods made to special order make limitation clauses more reasonable. ## Footnote Risk allocation is justified.

Question 39

How do time limits on claims affect reasonableness?

Answer 39

Very short time limits are likely unreasonable. ## Footnote E.g. 7-day limits are unfair.