- This topic has 8 replies, 6 voices, and was last updated 9 years ago by
.
- Posts
I have found this question in BPP exam kits (Question number 27 Exclusion clauses). I read it’s answers but I am not understanding, it is too long and very complicated. Can you please give me another answer??? PLEASE
Here is the question:
1. Explain the meaning of exclusion clauses, in contract law (2 Marks)
2. How are such clauses(exclusion clauses) controlled:
(a) at common law (4 Marks)
(b) By statute? (4Marks)PLEASE REPLY
Listen to the audio lectures on the topic and then top that up by reading the BPP text. Follow that up with another read of the printed solution. That should make it a lot more clear
Yes that’s my problem I am not understanding anything when I am reading BPP study text??? PLEASE IF YOU CAN’T GIVE ME THE WHOLE ANSWER FOR THESE QUESTION. GIVE ME AT LEAST A SIMPLE EXPLANATION OF THE DEFINITION OF EXCLUTION CLAUSES WITH AN EXAMPLE??? PLEASE
AND ALSO ABOUT COMMON LAW AND STATUE RELATING TO THIS.?????? PLEASE REPLYExclusion clauses are terms, which have been inserted into a contract by one party to exclude or limit his civil liability for the consequences of a breach of contract or negligence on his part.e.g. Notices within cloakrooms, hospital changing rooms ect will state “The management will accept no liability whatsoever for loss of or damage to items deposited in this cloak room or changing room, whether such damages is caused by the negligence of our employees or otherwise.
But you can’t exclude liability for negligence which results in death or personal injury!
Exclusion clauses are only valid if they satisfy two common law conditions:
1). They must be incorporated into a contract by:
Signature – L’Estrange v Graucob
or
Notice – before making the contract – Olley v Malborough court
or
Consistent previous dealing – Spurling v Bradshaw2). The wording must cover the loss e.g. “we are not liable for loss/damage of property” etc.
Even if they pass the above tests, it must pass the statutory rules:
UCTA 1977 – exclusion clauses made in the course of business. You can’t exempt liability for death/injury. You cant exempt other losses unless they are reasonable.
UTCCR 1999 – one party is a consumer, the other is a business. A term (all terms, not just exclusion clauses) is unfair if they are not expressed in plain english or they cause an imbalance in the parties rights to the detriment of the consumer.
An unfair term is not binding on the consumer, all the other “fair” terms still apply.The party relying on the exclusion clause must prove loss is reasonable (UCTA 1977) or whether a term is unfair or not (UTCCR 1999).
See the text for factors the court has to take into account in order to assess unfair/unreasonable terms.I hope this helps, I believe these are the main facts regarding exclusion clauses.
If I’ve made a mistake or left something out please let me know. I am still learning too!
An exclusion clause is a term in a contract that seeks to exlude a party’s liability for breach of contract.
To be valid, the exclusion clause must pass All Of the following test of common law and statute
Common Law Rules
1. the clause must be incorporated into the contract
2. the wording of clause must be appropriate to cover the loss
Statutory Rules
3. UCTA 1977
4. UTCCR 1999If anyone has the BPP book, on page 85 it has a table with Exemption clauses relating to various impled terms such as title, decription, quality and suitability and sample. I’m not quite sure how this works and what the table is trying to explain to me.
Is it the implied terms from the statute acts into those various elements that either cannot have valid exemption clausses or they must be reasonable?
Hope that made sense,
Thanks in advance!Gina
- You must be logged in to reply to this topic.