Clauses

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  • Created by: huth0
  • Created on: 04-04-17 18:09
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  • Exclusion and Limitation Clauses
    • Exemption clause a general term which means both exclusion and limitation clause
      • Limitation clause is a term which allows the party to be liable but limits how much that party would have to pay if liable
        • Exclusion clause is a term which tries to exclude all of a party's liability for a particular act or omission
    • Contra profeentem rule - any ambiguity will be resolved against the party relying on the clause
      • Houghton v Trafalgar Insurance  Co Ltd 1954
      • Liability for Negligence
        • Clear words must be used to exempt a party from liability for negligence
          • Hollier v Rambler Motors 1953
        • Doctrine of Fundamental Breach
          • So fundamentally different from the term
            • Karsales (Harrow) Ltd v Wallis 1956
    • If contract between a trader and a consumer for the trader to supply goods, digital content or services then -> Consumer Rights Act 2015
      • If the term is trying to exclude or limit liability relating to the consumers implied statutory rights then s31 CRA 2015 says it will be invalid
        • Similarly, s47 CRA for implied terms relating to digital content. s57 CRA relating to supply of services
      • If the exemtion clause is trying to exclude or limit liability for negligently causing death or personal injury then s65(1) CRA 2015 says it is invalid and has no effect on the consumer
    • If the term is 'unfair' then the trader cannot rely on it (s62(1) or (2) CRA 2015)
      • S62(4) CRA 2015 - A term is unfair if, contrary to the requirment of good faith, it causes significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer
      • If the clause is on the 'grey list' in Schedule 2 CRA 2015 then it is likely to be unfair

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