A more recent version of these Exemption Clauses 1 notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Contract Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
[EXEMPTION CLAUSES: COMMON LAW]
Exemption clauses are contractual terms that purport to limit or exclude a liability that would otherwise attach itself to one of the contracting parties (obligations affected may be contractual or tortious)
Lord Diplock in Photo Productions v Securior Transport: a clause 'which excludes or modifies an obligation, whether primary, general secondary or anticipatory secondary' o
Primary: from the contract
Secondary: to compensate if there is a breach
Definitional view: Laissez Faire/Freedom of contract
Exclusory approach: Modern approach - paternalistic/interventionist
1. Incorporation: is the EC part of the contract
2. Construction: is it effective in excluding or limiting liability
3. Statutory Controls: UCTA/Regulations Incorporation (1) Signature (2) Notice, or (3) A course of dealing
Incorporation must occur: (a) at or before the time of contracting and (b) the clause must appear on a contractual document
1. Incorporation through signature o
When a document containing contractual terms is signed without there being misrepresentation, the signing party is bound (whether or not they have read itL'Estrange v Graucob: Since E had signed the contract it was irrelevant that she had not read it, even though the sales agreement was in 'regrettably small print'
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