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Exemption Clauses 1 Notes

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A more recent version of these Exemption Clauses 1 notes – written by Cambridge/Bpp/College Of Law students – is available here.

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Revision: Contract

[EXEMPTION CLAUSES: COMMON LAW]

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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)

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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

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Secondary: to compensate if there is a breach

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Definitional view: Laissez Faire/Freedom of contract

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Exclusory approach: Modern approach - paternalistic/interventionist

Enforceability:

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

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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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Exceptions: 1

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