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39 Cards in this Set
- Front
- Back
when is fairness relevant |
business to business contracts |
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what test is used when questioning whether a business to business contract is valid |
test of reasonablenesswhat |
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what are unfair contract terms regulated by |
unfair contract terms act and consumer rights act |
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what do courts use to police unfair contract terms |
implication and construction |
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what are exclusionary clauses |
contractual terms that seek to restrict, limit or exclude one party’s or both parties liability for breach of contract |
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what are the three stages that need to be examined when assessing the validity of an exclusion clause |
incorporation construction statutory provisions |
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what are common law controls of exclusion clauses developed by |
courts |
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what are statutorylaw controls on exclusion clauses developed by |
designed and enacted by parliament |
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what should be done when looking at a problem question on unfair terms |
1 is it enforceable in common law 2 is if enforceable in statutory law has to pass both |
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what does contextual interpretation mean |
you put the clause in a broader commercial context to understand what the clause means |
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do courts often use the contextual interpretation method |
not rlly because its deemed more intrusive and flexible |
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what two tests does an exclusion clause have to pass to assess whether its valid in common law |
1 has it become incorporated (a part of the contract) 2 is the term properly constructed (what does the term actually mean) |
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whatre the four ways to find a term is incorporated |
signature reasonable notice consistent course of dealing common understanding |
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first thing you need to do to see if an exclusion clause is valid? |
see if its part of the contract does it pass the test of incorporation |
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what is meant by construction |
is the clause used appropriately worded to cover what has occurred |
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what case originated the rule of strict interpretation and what does it mean |
Wallis, Son & Wells v Pratt and Haynes plain words will be given no wider meaning than their scope requires |
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in what direction will ambiguous clauses be interpreted |
against the party seeking to rely on it (contra preferentum) |
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what happened in Andrew v Singer |
a clause that excluded liability in relation to an implied term was held to be ineffective to exclude liability for breach of an express term |
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what happened in Houghton v Trafalgar Insurance |
car not insured for accidents if carrying an excess ‘load’ - ‘load’ didnt cover extra passengers |
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whats another method of interpretation of exclusion clauses |
contextual |
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what’re the interpretation techniques used by courts to protect a weaker party to a contractual bargain |
rule of strict interpretation contra preferentum |
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whats the situation for terms seeking to exclude / limit liability for negligence |
they have special rules |
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whats the situation for terms seeking to exclude / limit liability for negligence |
they have special rules |
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what are the 3 special rules for terms seeking to exclude/ limit liability for negligence |
clear words must be used are the words wide enlugh to cover negligence does the cluase cover more than 1 type of liability - may be taken to exclude non-negligent liability only |
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whats the situation for terms seeking to exclude / limit liability for negligence |
they have special rules |
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what are the 3 special rules for terms seeking to exclude/ limit liability for negligence |
clear words must be used are the words wide enlugh to cover negligence does the cluase cover more than 1 type of liability - may be taken to exclude non-negligent liability only |
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what case sets out principles that will be applied by courts when interpreting clauses excluding liability for negligence |
Canada Steamships |
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whats the situation for terms seeking to exclude / limit liability for negligence |
they have special rules |
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what are the 3 special rules for terms seeking to exclude/ limit liability for negligence |
clear words must be used are the words wide enlugh to cover negligence does the cluase cover more than 1 type of liability - may be taken to exclude non-negligent liability only |
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what case sets out principles that will be applied by courts when interpreting clauses excluding liability for negligence |
Canada Steamships |
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what was held in Canada Steamships |
fgg |
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when can a party not rely on an exclusion clause |
if they use fraud or misrepresentation to induce another party to enter into a contract |
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what case did this originate in |
Curtis v Chemical Cleaning and Dyeing Co |
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what is the doctrine of fundamental breach |
some breaches of contractual terms are so serious that exclusion clauses cannot limit restrict or exclude liability |
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what are examples of two cases where the doctrine of fundamental breach is in action |
Karsales v Wallis Harbutt’s Plasticine Ltd v Wayne Tank and Pump Co Ltd |
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in which case was the doctrine of fundamental breach rejected |
Photo Production Ltd v Securitor Transport Ltd |
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what kind of contracts does the contra preferentum rule apply to |
business to consumer |
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in business to consumer contracts which party is favoured via the contra preferentum rule |
consumer is favoured |
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what does the Photo Production Ltd v Securitor Transport Ltd case show |
that in business to business contracts the court will allow exclusion clauses even for breaches that are very serious and fundamental to the performance of a contract |