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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
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