Unfair Contract Terms Incorporatio And Construction

Front 1

when is fairness relevant

Back 1

business to business contracts

Front 2

what test is used when questioning whether a business to business contract is valid

Back 2

test of reasonablenesswhat

Front 3

what are unfair contract terms regulated by

Back 3

unfair contract terms act and consumer rights act

Front 4

what do courts use to police unfair contract terms

Back 4

implication and construction

Front 5

what are exclusionary clauses

Back 5

contractual terms that seek to restrict, limit or exclude one party’s or both parties liability for breach of contract

Front 6

what are the three stages that need to be examined when assessing the validity of an exclusion clause

Back 6

incorporation

construction

statutory provisions

Front 7

what are common law controls of exclusion clauses developed by

Back 7

courts

Front 8

what are statutorylaw controls on exclusion clauses developed by

Back 8

designed and enacted by parliament

Front 9

what should be done when looking at a problem question on unfair terms

Back 9

1 is it enforceable in common law

2 is if enforceable in statutory law

has to pass both

Front 10

what does contextual interpretation mean

Back 10

you put the clause in a broader commercial context to understand what the clause means

Front 11

do courts often use the contextual interpretation method

Back 11

not rlly because its deemed more intrusive and flexible

Front 12

what two tests does an exclusion clause have to pass to assess whether its valid in common law

Back 12

1 has it become incorporated (a part of the contract)

2 is the term properly constructed (what does the term actually mean)

Front 13

whatre the four ways to find a term is incorporated

Back 13

signature

reasonable notice

consistent course of dealing

common understanding

Front 14

first thing you need to do to see if an exclusion clause is valid?

Back 14

see if its part of the contract

does it pass the test of incorporation

Front 15

what is meant by construction

Back 15

is the clause used appropriately worded to cover what has occurred

Front 16

what case originated the rule of strict interpretation and what does it mean

Back 16

Wallis, Son & Wells v Pratt and Haynes

plain words will be given no wider meaning than their scope requires

Front 17

in what direction will ambiguous clauses be interpreted

Back 17

against the party seeking to rely on it (contra preferentum)

Front 18

what happened in Andrew v Singer

Back 18

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

Front 19

what happened in Houghton v Trafalgar Insurance

Back 19

car not insured for accidents if carrying an excess ‘load’ - ‘load’ didnt cover extra passengers

Front 20

whats another method of interpretation of exclusion clauses

Back 20

contextual

Front 21

what’re the interpretation techniques used by courts to protect a weaker party to a contractual bargain

Back 21

rule of strict interpretation

contra preferentum

Front 22

whats the situation for terms seeking to exclude / limit liability for negligence

Back 22

they have special rules

Front 23

whats the situation for terms seeking to exclude / limit liability for negligence

Back 23

they have special rules

Front 24

what are the 3 special rules for terms seeking to exclude/ limit liability for negligence

Back 24

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

Front 25

whats the situation for terms seeking to exclude / limit liability for negligence

Back 25

they have special rules

Front 26

what are the 3 special rules for terms seeking to exclude/ limit liability for negligence

Back 26

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

Front 27

what case sets out principles that will be applied by courts when interpreting clauses excluding liability for negligence

Back 27

Canada Steamships

Front 28

whats the situation for terms seeking to exclude / limit liability for negligence

Back 28

they have special rules

Front 29

what are the 3 special rules for terms seeking to exclude/ limit liability for negligence

Back 29

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

Front 30

what case sets out principles that will be applied by courts when interpreting clauses excluding liability for negligence

Back 30

Canada Steamships

Front 31

what was held in Canada Steamships

Back 31

fgg

Front 32

when can a party not rely on an exclusion clause

Back 32

if they use fraud or misrepresentation to induce another party to enter into a contract

Front 33

what case did this originate in

Back 33

Curtis v Chemical Cleaning and Dyeing Co

Front 34

what is the doctrine of fundamental breach

Back 34

some breaches of contractual terms are so serious that exclusion clauses cannot limit restrict or exclude liability

Front 35

what are examples of two cases where the doctrine of fundamental breach is in action

Back 35

Karsales v Wallis

Harbutt’s Plasticine Ltd v Wayne Tank and Pump Co Ltd

Front 36

in which case was the doctrine of fundamental breach rejected

Back 36

Photo Production Ltd v Securitor Transport Ltd

Front 37

what kind of contracts does the contra preferentum rule apply to

Back 37

business to consumer

Front 38

in business to consumer contracts which party is favoured via the contra preferentum rule

Back 38

consumer is favoured

Front 39

what does the Photo Production Ltd v Securitor Transport Ltd case show

Back 39

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