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Exemption Clauses Notes

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For all exemption clauses must look at three things:
o Incorporation - above

Construction - above/below

Unfair Terms - below
Two approaches to exemption clauses

McKendrick: a social nuisance, imposed on a contracting party who lacks a real ability to take issue with them, or the commercial clout to insist that they should be modified.
o A useful business tool, they are the fine tuning of the contract allowing for effective freedom of contract regarding risk allocation.
Contra proferentem: an ambiguity will be resolved against the party who is seeking to rely on the exemption.
More generally this means that courts will generally read exemption clauses very narrowly:
o Wallis v Pratt & Haynes [1911] - D sold seed to P who sold it on. Supplied as "common English sainfoin", but when it germinated it was found to be giant sainfoin, an inferior strain. Exclusion cause read: "Sellers give no warranty,
express or implied, as to growth, description, or any other matters...".
 HoL Held that a failure of a seed to match its description amounted to a breach of condition.
If an exclusion clause is repugnant to the contract itself then it may well be deprived of effect by the court

Andrews Bros v Singer [1934] - D appointed P as dealers to buy 'new singer cars' from them and sell them on. Clause read: "all conditions, warranties and liabilities implied by common law, statute or otherwise are excluded".
 One of the cars was not new. Had been driven 550miles to show to customer.
 CA held that the clause was not effective. It ousted implied terms not express ones (namely that the car must be 'new')
 Benjamin on Sale:
 Once the court has decided that the sale was a sale by description of "new Singer cars" then nothing else could satisfy the contract and by no artifice could the seller avoid the obligation to provide new Singer cars.
 Otehrwise seller could ignore other words: need not be a singer? Need not be a car?
A court will usually find liability for a fundamental breach of contract regardless of an exclusion clause:
o Chanter v Hopkins (1838) - Lord Abinger said "If a man offers to buy peas of another, and he sends him beans, he does not perform his contract". 

o Karsales (Harrow) v Wallis [1956] - Wallis lacked money to buy car outright, so owner sold it to Karsales who gave it to Wallis on a hire purchase agreement. Car was subsequently towed to Wallis's premises at night and left.
Part of the engine was missing, two pistons were broken, the tyres damaged and the radio had been removed.
 Karsales relied on clause which stated "No condition or warranty that the vehicle is roadworthy, or as to its age, condition or fitness for any purpose is given by the owner or implied herein".
 CA held ineffective as the agreement related to a car:
The vehicle in question could no longer be regarded as a car, because it was so grossly damaged as to be incapable of self-propulsion.
 Peas and beans case.
o Harbutt's Plasticine v Wayne Tank [1970] - Lord Denning proposed that where a fundamental term of a contract (ie. a condition) had been breached, and the wronged party had elected to terminate the contract, then with the termination of contract any exemption clause contained within it ceased to operate.
 Unfortunately this is wrong, as termination for a contract does not deprive clauses of further effect -
they are still relied upon to give a party the right to recover damages. Based on a misunderstanding of HoL
speeched in Suisse Atlantique [1967]
 Overruled in Photo Production

Photo Production v Securicor Transport [1980] - D
provided night patrol service to Photo Productions, for a low charge of £8 15s/week for several visits a night. Clause stated that d was not "responsible for any injurious act or default by any employee…unless it could be foreseen or avoided"
 An employee lit a fire by throwing a match on some cartons. This caused damages

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