Ucta Explanatory Provisions And Schedules

Front 1

What does section 11 UCTA seek to define?

Back 1

the "requirement of reasonableness"?

the term
having regard to the circumstances which were,
or ought reasonably to have been,
known to or in the contemplation of the parties
when the contract was made.

Front 2

What are the two characteristics of a term that would pass the requirement of reasonableness test under section 11(1) UCTA?

Back 2

it shall have been a fair and reasonable one to be included in the contract

Front 3

When deciding whether the term is fair and reasonable under section 11(1) UCTA, what should the court have regard to?

Back 3

the circumstances surrounding the contract

Front 4

At what time should the court have regard to whether the circumstances are fair and reasonable under the section 11(1) test for the requirement of reasonableness??

Back 4

when the contract was made.

Front 5

If the parties didn't know about a particular set of circumstances at the time of the contract being made, but transpired later, should the court have regard to those later circumstances under the test laid down in section 11(1) UCTA?

Back 5

No. The court shall only have regard to the circumstances which the parties
(a) knew about; or
(b) ought reasonably to have known about;
(c) were in the contemplation of the parties
(d) or should have been in the contemplation of the parties
at the time the contract was made

Front 6

Does Schedule 2 have direct relevance to section 11(1) and the requirement of reasonableness

Back 6

No. The Schedule says it refers to sections 6(3) - the business test for whether it is reasonable to exclude SOGA 13, 14,15 and 7(3) and (4), which are the requirement of reasonableness for business contracts which exclude SOGSA 1982, and all those contracts that aren't covered by anything else.

Front 7

Should Schedule 2 of UCTA provide the only things that the court should have regard to?

Back 7

No. Section 11(2) UCTA says that the court can hold "in accordance with any rule of law" that a term which excludes liability is not a term of the contract. Not sure what this actually means

Front 8

On whom is the burden of proof for showing that a given term satisfies the requirement of reasonableness?

Back 8

On the party who claims that it does (unsurprisingly) section 11(5) UCTA.

Front 9

Under Schedule 2, there are listed five things to which regard should be had for deciding the requirement of reasonableness under section 6(3), 7(3) and (4). Is the court obliged to consider them all, one by one.

Back 9

No. The Schedule states that the court shall have regard only if they are relevant.

Front 10

There are five matters listed in Schedule 2. What, in summary, are they?

Back 10

1.relative bargaining strength of the parties
2.inducement
3. knowledge of the term
4. possible compliance
5. were they specially adapted goods?

Front 11

Under Schedule 2, the first criterion is the strength of the bargaining position of the parties relative to each other. What is the thing mentioned, that the court should (among other things) take into account?

Back 11

alternative means by which the customer's requirements could have been met;

Front 12

The second criterion in Schedule 2 deals with inducement to agree to the term. Note: it says the term, not the contract. What other opportunity that the customer might have had, is the court required to consider?

Back 12

Whether the customer in accepting a given term, had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term

Front 13

The second criterion in Schedule 2 deals with inducement to agree to the term. Note: it says the term, not the contract. What other opportunity that the customer might have had, is the court required to consider

Back 13

Whether the customer in accepting a given term,had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term

Front 14

Criterion 3 in Schedule 2, posits two sorts of knowledge. What are they?

Back 14

Did the customer know;
ought he reasonably to have known?

Front 15

Criterion 3 of Schedule 2 suggests that the court should have regard to something the customer knows, or ought reasonably have known. What is it?

Back 15

The existence and extent of the term.

Front 16

In criterion 3 listed in Schedule 2, the court has to have regard to the knowledge of the customer, or what he reasonably should have known about the existence and extent of the term under scrutiny. From what two things, is the customer's knowledge supposed to have derived?

Back 16

trade custom
previous course of dealing

Front 17

It is common to find a clause in a contract that excludes or restricts liability if some condition is not complied with. Criterion 4 of Schedule 2 directs the court to have regard to what?

Back 17

Whether it was reasonable, at the time the contract was made to expect that compliance with that term would be practicable.

Front 18

What does Criterion 5 require the court to have regard to?

Back 18

whether the goods were manufactured, processed or adapted to the special order of the customer.

Front 19

Under section 11(4) UCTA, Where by reference to a contract term or notice a person seeks to restrict liability to a specified sum of money, and the question arises (under this or any other Act) whether the term or notice satisfies the requirement of reasonableness, regard shall be had in particular to what?

Back 19

(a) the resources which he could expect to be available to him for the purpose of meeting the liability should it arise; and
(b) how far it was open to him to cover himself by insurance.
BUT WITHOUT PREJUDICE TO subsection 11(2).

Front 20

What does section 11(2) deal with

Back 20

brings in Schedule 2