A more recent version of these Exclusion Clauses notes – written by Cambridge And Oxilp And College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Commercial and IP Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Elective: Commercial & IP
Commercial Law Exclusion Clauses
? A clause which attempts to limit, exclude, define liability [see S.13 UCTA 1977]
? Exclusion / restriction of liability
? S.13(1)(a) making liability or its enforcement subject to restrictive or onerous conditions
[e.g. you can only complain within 10 days of delivery]
? S.13(1)(b) excluding or restricting any right to remedy in respect of liability or subjecting a person to any prejudice in consequence of his pursuing any such remedy [e.g. if you sue us we will terminate out agreement with you]
How to rely on a EC = the three hurdles Incorporation Signature
1 Previous course of dealing
Customer who signs is bound whether or not he reads the terms
Incorporate through reference to terms / conditions in another contractual document [e.g. confirmation slip; sales invoice; NOT a receipt]
Court will want to see that reasonable steps were taken to incorporate Timing: Olley v Malborough Court = must be referred to before contract is made. Smith v South Wales Switchgear = if Party B have not received notice that a particular version of the terms are to be incorporated, it is implied that the most recent version of terms are the ones incorporated. Onerous terms: Interfoto Picture Library v Stilleto
= there should be further steps taken to highlight the term
[e.g. bold & large print; Placing a clear terms at the beginning of the document advising the other party that attention is particularly drawn to certain conditions]
Party A and Party B have contracted on a regular basis Terms always incorporated and no objections have been raised to the terms Party A and Party B are involved in the same trade They are both aware that certain conditions are customarily implied
? Does the clause cover the breach?
? The clause must: a) Cover the breach which actually occurs; and b) Exclude the seller's liability for that breach
Buy the full version of these notes or essay plans and more in our Commercial and IP Notes.