7. Exemption clauses and unfair contract terms

2019 ◽  
pp. 250-296
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Duty Of Care ◽  
Breach Of Contract ◽  
Consumer Rights ◽  
Insurance Cover ◽  
Legislative Regulation ◽  
The Law ◽  
Unfair Terms ◽  
The Uk

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. A clause which seeks either to exclude a party’s liability for breach or to limit that liability to a specified amount is known as an exemption clause. It is also possible for exemption clauses to seek to exclude or limit the remedies which would otherwise be available for breach or seek to deny that any breach of contract or breach of a duty of care has occurred. Although such clauses can allocate risks between the parties and prevent duplicate insurance cover, both the courts and the Parliament in the UK have sought to control their use. An exemption clause is enforceable if the clause in question is incorporated as a term, covers the loss that has occurred in the circumstances in which it arose, and is not rendered unenforceable by either the Unfair Contract Terms Act 1977 (B2B contracts) or Part 2 of the Consumer Rights Act 2015 (B2C contracts). This chapter examines the construction of exemption clauses as well as the legislative regulation of exemption clauses and, in the consumer context, unfair terms.

6. Exemption clauses and unfair contract terms

2021 ◽  
pp. 227-271
Author(s):  
Robert Merkin ◽  
Séverine Saintier ◽  
Jill Poole
Keyword(s):  
Contract Law ◽  
Duty Of Care ◽  
Breach Of Contract ◽  
Consumer Rights ◽  
Insurance Cover ◽  
Legislative Regulation ◽  
The Law ◽  
Unfair Terms ◽  
The Uk

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. A clause which seeks either to exclude a party’s liability for breach or to limit that liability to a specified amount is known as an exemption clause. It is also possible for exemption clauses to seek to exclude or limit the remedies which would otherwise be available for breach or seek to deny that any breach of contract or breach of a duty of care has occurred. Although such clauses can allocate risks between the parties and prevent duplicate insurance cover, both the courts and the Parliament in the UK have sought to control their use. An exemption clause is enforceable if the clause in question is incorporated as a term, covers the loss that has occurred in the circumstances in which it arose, and is not rendered unenforceable by either the Unfair Contract Terms Act 1977 (B2B contracts) or Part 2 of the Consumer Rights Act 2015 (B2C contracts). This chapter examines the construction of exemption clauses as well as the legislative regulation of exemption clauses and, in the consumer context, unfair terms.

7. Exemption clauses and unfair contract terms

2019 ◽  
pp. 289-345
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
Ordinary Meaning ◽  
Consumer Rights ◽  
Legislative Regulation ◽  
Consumer Contracts ◽  
The Subject ◽  
Unfair Terms ◽  
Selection Of

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with exemption clauses and unfair contract terms. An exemption clause is a term in a contract or notice that can be either an exclusion clause (excluding liability or remedies) or a limitation clause (limiting liability to a specified sum). The chapter primarily focuses on the requirements that must be satisfied before an exemption clause can be relied upon, the question of construction and the natural and ordinary meaning of the clause, contra proferentem, liability for negligence, limitation clauses, inconsistent terms and fundamental breach. It then examines the legislative regulation of exemption clauses, emphasizing the growing distinction between commercial and consumer contracts in this context. It considers in some depth the enforceability of exemption clauses in a B2B context in accordance with the Unfair Contract Terms Act 1977 and its interpretation in case law. In the B2C context, it discusses control of unfair terms in accordance with Part 2 of the Consumer Rights Act 2015 and the case law interpreting the previous legislative regulation of unfair terms.

JC Smith's The Law of Contract

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Contract Law ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Strong Focus ◽  
Key Points ◽  
Expert Analysis ◽  
The Law ◽  
Unfair Terms ◽  
Compensatory Damages ◽  
Contractual Rights

Driven by exposition of the leading cases, JC Smith’s The Law of Contract offers the perfect balance between accessibility and authority. The strong focus on cases guides the reader through the intricacies of contract law with expert analysis ensuring key points are clear. The text begins with an introduction to contractual rights and duties. It looks at objectivity in contract law, the formation of bilateral and unilateral contracts, contract as agreement, offeror and offeree, estoppel, legal relations, and the role of third parties. It also considers the terms of the contract, interpretation of the contract, implication and rectification, and exclusion clauses and unfair terms. It goes on to look at issues such as duress, undue influence, good faith, capacity, illegality, contractual assumptions, breach of contract, remedies and damages, and remedies beyond compensatory damages.

6. Exemption clauses and unfair contract terms

2021 ◽  
pp. 120-141
Author(s):  
Jill Poole ◽  
James Devenney ◽  
Adam Shaw-Mellors
Keyword(s):  
Common Law ◽  
Critical Test ◽  
Essential Information ◽  
Consumer Rights ◽  
Legislative Regulation ◽  
Consumer Contracts ◽  
The Common ◽  
The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the use and enforceability of exemption clauses (total exclusion or limitation of liability clauses inserted into contracts) and their legislative regulation. Whereas the regulation of such clauses is limited to the common law and UCTA 1977 in the case of commercial contracts (B2B), in the case of consumer contracts (B2C) the law intervenes to control a broader category of terms, ‘unfair contract terms’ (Consumer Rights Act 2015) with the critical test being ‘unfairness’.

1. Introduction to the law of contract

2021 ◽  
pp. 1-28
Author(s):  
Robert Merkin ◽  
Séverine Saintier ◽  
Jill Poole
Keyword(s):  
Contract Law ◽  
Good Faith ◽  
The European Union ◽  
Electronic Communications ◽  
European Directives ◽  
Consumer Rights ◽  
The Law ◽  
Contractual Obligations ◽  
The Uk ◽  
Common European Sales Law

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. Contracts are legally enforceable agreements intended for planned exchanges that are regulated by the principles of contract law. This chapter looks at some of the main theories underpinning the development of English contract law and examines the nature of contractual liability. Contractual obligations arise largely from party agreement and this distinguishes contractual liability from liability in tort. Given the continued relevance of English law in a globalized world (in spite of the UK exiting the European Union), this chapter also briefly introduces the various attempts to produce a set of harmonized principles such as the Common European Sales Law, along with the impact of other international developments including the growth in e-commerce and electronic communications. Moreover, the chapter analyses the most significant European directives and their effect on the development of English contract law, especially in the context of consumer contracts. The implementation of these European directives has resulted in the introduction of the concept of ‘good faith’ into English contract law. Given the increasing importance of good faith as a concept, especially when in the context of ‘a relational contract’, the chapter gives detailed discussion on the scope of and application of good faith in performance of the contract. Finally, the chapter considers the implementation of the Consumer Rights Directive in a number of statutory instruments and the Consumer Rights Act 2015.

scholarly journals The Consumer Rights Act 2015 – a bastion of European consumer rights?

Legal Studies ◽  
2017 ◽  
Vol 37 (1) ◽  
pp. 78-102 ◽  
Author(s):  
Paula Giliker
Keyword(s):  
Member State ◽  
Digital Content ◽  
European Consumer ◽  
Consumer Rights ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The Uk ◽  
Informed Consumer ◽  
National Framework ◽  
The Eu

The Consumer Rights Act 2015 seeks to consolidate in one place key consumer rights covering contracts for goods, services and digital content, and the law relating to unfair terms in consumer contracts. These are areas where there has been considerable activity at both a national and an EU level. In particular, the Consumer Sales Directive 99/44/EC, the Unfair Terms in Consumer Contracts Directive 93/13/EEC and the Consumer Rights Directive 2011/83/EU have all made significant changes to Member State law, promoting the idea of the ‘informed consumer’, able to assert his or her rights in entering consumer contracts. This paper will examine the extent to which the Act promotes the objectives of these Directives and the implications of the result of the June 2016 referendum that the UK should leave the EU. Does the Consumer Rights Act 2015 represent a valuable consolidation of EU and UK consumer policy, or are EU rights being absorbed into a distinctive national framework of consumer rights?

6. Exemption clauses and unfair contract terms

2019 ◽  
pp. 126-148
Author(s):  
Jill Poole ◽  
James Devenney ◽  
Adam Shaw-Mellors
Keyword(s):  
Common Law ◽  
Critical Test ◽  
Essential Information ◽  
Consumer Rights ◽  
Legislative Regulation ◽  
Consumer Contracts ◽  
The Common ◽  
The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the use and enforceability of exemption clauses (total exclusion or limitation of liability clauses inserted into contracts) and their legislative regulation. Whereas the regulation of such clauses is limited to the common law and UCTA 1977 in the case of commercial contracts (B2B), in the case of consumer contracts (B2C), the law intervenes to control a broader category of terms, ‘unfair contract terms’ (Consumer Rights Act 2015) with the critical test being ‘unfairness’.

scholarly journals THE LAW "ON CONSUMER RIGHTS" THE UK: RIGHTS, DUTIES, RESPONSIBILITY

2018 ◽  
Vol 22 (3) ◽  
pp. 137-144
Author(s):  
A. N. Surkov ◽  
S. V. Melnik ◽  
E. V. Chernykh
Keyword(s):  
European Union ◽  
Consumer Protection ◽  
The European Union ◽  
Rights Protection ◽  
The United Kingdom ◽  
Consumer Rights ◽  
New Type ◽  
Legal Space ◽  
The Law ◽  
The Uk

In this article, one of the most urgent topics of the development of legislation on consumer rights protection in the UK is being considered. UK legislation on the protection of consumer rights, especially in connection with the forthcoming withdrawal of Britain from the European Union has a number of features. The law "On the Rights of Consumers", adopted in 2015, made it possible to analyze and highlight a number of features in the field of consumer protection in the UK, namely, the allocation of absolutely new standards applicable to the new type of services-digital content. By researching this topic, the author shows the emerging contradictions between the legislation of the European Union and the United Kingdom in the field of consumer protection, where the UK, against the backdrop of Brexit, analyzing the new Directives adopted by the European Union to retain a single legal space tends to unify the norms of the law "On the Rights of Consumers".

7. Exemption Clauses and Unfair Terms

2021 ◽  
pp. 202-246
Author(s):  
André Naidoo
Keyword(s):  
Common Law ◽  
The Other ◽  
Consumer Rights ◽  
Unfair Term ◽  
The Common ◽  
The Law ◽  
Unfair Terms ◽  
Law And Legislation

This chapter assesses exemption clauses and unfair terms. Exemption clauses are terms that either exclude or limit the liability of a party. The law relating to the use of such clauses is a mixture of rules found in both the common law and legislation; the common law rules apply to all contracts. In addition, the Unfair Contract Terms Act 1977 applies to the use of exemption clauses in contracts between two businesses. For consumers, the Consumer Rights Act 2015 provides wider protection from unfair terms including exemption clauses. The practical context of exemption clauses is simple. One party will be in breach and so the other will seek compensation for the loss caused by the breach. The party in breach will then defend the action by relying on an exemption clause. The dispute is then about whether or not the clause can be relied upon. The circumstances in which terms might be assessed for being ‘unfair’ can be wider than this. Typically, a business will take action against a consumer following the consumer’s failure to perform an obligation, which will then prompt the consumer to challenge the obligation as based on an unfair term.

6. Exemption clauses and unfair contract terms

2017 ◽  
Author(s):  
Jill Poole ◽  
James Devenney ◽  
Adam Shaw-Mellors
Keyword(s):  
Common Law ◽  
Critical Test ◽  
Essential Information ◽  
Consumer Rights ◽  
Legislative Regulation ◽  
Consumer Contracts ◽  
The Common ◽  
The Law

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the use and enforceability of exemption clauses (total exclusion or limitation of liability clauses inserted into contracts) and their legislative regulation. Whereas the regulation of such clauses is limited to the common law and UCTA 1977 in the case of commercial contracts (B2B), in the case of consumer contracts (B2C), the law intervenes to control a broader category of terms, ‘unfair contract terms’ (Consumer Rights Act 2015) with the critical test being ‘unfairness’.

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