Contract Essay, Research Paper

Exclusion and Exemption Clauses. 166-170, 278, 281, 288, 355-356

(i) The position at Common Law.

An exclusion clauses is a term of the contract which limits or excludes a liability from one party which would otherwise be subjected to. The function of an exclusion clause is to limit or exclude liability for breach of an express or implied term or even negligence in a contract. The court approach to interpreting such a clause is to interpret them narrowly.

(a) Signed documents.

L?strange v. Graucob (166)

(b) Unsigned documents.

With an unsigned documents, an exclusion clause will be binding only if the clause was brought to the notice of the customer. This notice must be reasonable notice and is determined objectively by the courts.

Parker v. S.E. Railway (167)

Thompson v. LMS Railway Co.

Baltic Shipping v. Dillon

Thoston v. Shoe Lance Parking

(c) Contractual documents.

The document containing the exclusion clause must be of a contractual nature before the courts will hold the exclusion clause to be binding. To determine whether a clause is a contractual document, the court employ the reasonable person test and ask:

Would a reasonable person expect such a document to contain an exclusion clause or would it merely represent a receipt or voucher?

Causer v. Browne (168)

(d) Time of notice.

If notice of the exclusion clause is not given until after the contract has been completed, the exclusion clause will not be binding.

Olley v. Malborough (168)

(e) Previous course of dealings.

If the customer has had previous dealings with the defendant, the court will more readily infer knowledge of the exclusion clause. If the customer through his previous dealings knows about the clause then he will be bound by it.

Henry Kendall & Sons v. William Lilico (168)

(f) Effect of misrepresentations.

If the effect or scope of exclusion clause has been misrepresented to the customers, the exclusion clause is not binding.

Curtis v. Chemical Cleaning Co.