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15 Cards in this Set

  • Front
  • Back

Three stage approach

1) The clause must be incorporated into the contract

2) The clause must pass the test of construction

3) The clause must satisfy the relevant statutory provisions


1) Signature

2) Notice

3) Previous course of dealings


A signature represents that a party has read and understood all of the terms in the contract (L'Estrange)

The clause will be invalid if there is a misrepresentation (Curtis v Chemical Cleaning)


1) Must be reasonable

2) Must be given at the time of or before the contract is made (Olley v Marlborough Court)

Red hand rule (Thornton v Shoe Lane Parking)

Must be in a contractual document (Chapelton v Barry)

Red Hand Rule

Established by Lord Denning in Spurling v Bradshaw = the more onerous the clause, the greater level of notice will be needed. It will need to be more prominent

Previous course of dealings

1) There must be sufficient notice of the clause (Spurling v Bradshaw)

2) The previous dealings must be consistent (McCutcheon v MacBrayne)


Contra preforentum rule

Contra preforentum

Any ambiguity or uncertainty will be interpreted as strictly as possible against the person relying on the clause

This is more lenient with limitation clauses (Ailsa Craig)

The two types of liability

1) Contractual = Strict liability

2) Negligent liability

Clauses that seek to exclude negligence

Canada Steamship

1) Express reference to negligence will exclude it

2) Are the words wide enough to cover negligence? Howsoever caused/arising (Holier

3) Is there concurrent liability? If so the clause covers the strict liability only. (White v John Warwick)

Where the only liability is negligence

There is no need to make an express reference to negligence where the only possible liability is negligence (Alderslade v Hendon Laundry)

Usually occurs when providing a service

Relevant statutory provisions

UCTA 1977 for non-consumers

CRA 2015 for consumers

SGA 1979 for sale

SGAS 1982 for hire

UCTA 1977

S 2 = Negligence

S 3 = Breach of contract

S 6 = Sale of goods and hire purchase

S 7 = Hire (Supply of goods)

All subject to reasonableness test S 11

CRA 2015

S 62 and 65 = Negligence

S 57 = Services

S 31 = Goods

SGSA 1982

S 9 = Satisfactory quality

S 13 = Negligence