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In which of the following instances will a term NOT be incorporated into a business to business contract?
A Where a party signs the contract containing the term, whether they have read it or not.
B Where the term is an exclusion clause under the Unfair Contract Terms Act 1977.
C Where there is a course of dealing between the parties.
D Where reasonable notice of the term is given but a contracting party remains unaware of its existence.I chose D but the model answer suggests B.
For B, I thought a fair and reasonable exclusion clause under UCTA 1977 can still be incorporated into a contract.
For D, the contracting party should be sufficiently aware of the exclusion clause for it to be included, shouldn’t they?Please help me clarifying this,
Thank you.Hi Iniss
It can’t be option D – it’s not our fault that the other party was unaware even though sufficient notice was given.
I believe that, for example, a clause exempting liability for negligence resulting in personal injury or death would be excluded under UCTA … so it’s possible that an exclusion clause under UCTA may not be incorporated into a contract.
OK?
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