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.

6. Exemption clauses and unfair contract terms

2021 ◽  
pp. 251-306
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
Contract Law ◽  
Ordinary Meaning ◽  
Consumer Rights ◽  
Legislative Regulation ◽  
Consumer Contracts ◽  
The Subject ◽  
Unfair Terms ◽  
Selection Of

Poole’s Casebook on Contract Law 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.

8. Terms of the contract II: common law and statutory controls on unfair terms

2020 ◽  
pp. 198-227
Author(s):  
Janet O’Sullivan
Keyword(s):  
Common Law ◽  
The Core ◽  
Consumer Rights ◽  
Consumer Contracts ◽  
The Subject ◽  
The Common ◽  
Unfair Terms ◽  
Standard Terms

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines potentially unfair terms, including exemption clauses, in a contract. It considers the common law’s response to exemption clauses and other potentially unfair terms, and discusses statutory schemes to regulate them. It covers the Unfair Contract Terms Act 1977 (UCTA) which governs exemption clauses in non-consumer contracts, subjecting them to a requirement of reasonableness where the contract was made on standard terms. It also discusses in detail the Consumer Rights Act 2015 (CRA), which imposes a test of fairness on terms in consumer contracts, apart from the core terms.

8. Terms of the contract II: common law and statutory controls on unfair terms

2018 ◽  
Author(s):  
Janet O’Sullivan
Keyword(s):  
Common Law ◽  
The Core ◽  
Consumer Rights ◽  
Consumer Contracts ◽  
The Subject ◽  
The Common ◽  
Unfair Terms ◽  
Standard Terms

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines unfair terms and exemption clauses in a contract. It considers the common law’s response to unfair terms and exemption clauses and discusses statutory schemes to regulate them. It covers the Unfair Contract Terms Act 1977 (UCTA) which governs exemption clauses in non-consumer contracts, subjecting them to a requirement of reasonableness where the contract was made on standard terms. It also discusses in detail the Consumer Rights Act 2015 (CRA), which imposes a test of fairness on terms in consumer contracts, apart from the core terms.

15. Remedies providing for specific relief and restitutionary remedies

2021 ◽  
pp. 769-796
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Attorney General ◽  
Supreme Court Decision ◽  
Case Law ◽  
Contract Law ◽  
The Supreme Court ◽  
Specific Performance ◽  
Total Failure ◽  
One Step ◽  
The Subject ◽  
Selection Of

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with remedies providing for specific relief and so-called ‘restitutionary’ remedies. It first considers debt claims (agreed sums), before turning to specific performance and injunctions. It concludes by discussing restitution—recovery where there has been a total failure of consideration, and recovery on a quantum meruit (as where a contract fails to materialize)—following the Supreme Court decision of Morris-Garner and another v One Step (Support Ltd) and its impact on Wrotham Park damages and the availability and nature of the account of profits in Attorney-General v Blake.

5. Content of the contract and principles of interpretation

2021 ◽  
pp. 171-250
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Knowledge ◽  
Case Law ◽  
Contract Law ◽  
Supply Contracts ◽  
The Subject ◽  
Selection Of

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines what the parties to a contract have undertaken to do; that is, the terms of the contract, and the principles determining how the courts interpret the meaning of those contractual terms. It considers whether pre-contractual statements are terms or mere representations. The chapter then turns to written contracts, focusing on the parol evidence rule, entire agreement clauses, and the effect of signature on the contractual document. It also discusses oral contracts and incorporation of written terms in such contracts by means of signature, reasonable notice, consistent course of dealing, and common knowledge of the parties. In addition to express terms, this chapter looks at how terms are implied, particularly terms implied by the courts—terms implied in law and terms implied in fact. There is discussion of the typical implied terms in sale and supply contracts in the B2B and B2C context. Finally, this chapter focuses on the principles governing the interpretation of contractual terms.

14. Unfair Terms in Consumer Contracts

Contract Law ◽  
2020 ◽  
pp. 444-471
Author(s):  
Ewan McKendrick
Keyword(s):  
Good Faith ◽  
Consumer Rights ◽  
Key Concepts ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The Individual ◽  
Work Done ◽  
Exhaustive List

This chapter focuses on Part 2 of the Consumer Rights Act 2015. The Act gives to the courts much broader powers to regulate terms in contracts which have been concluded between traders and consumers. Section 2 examines the individual sections of Part 2 of the Act and the leading cases decided under the Regulations which preceded the Act. Particular attention is given to key concepts such as ‘significant imbalance’, ‘good faith’, the exclusion of certain terms from assessment for fairness, the indicative and non-exhaustive list of terms that may be regarded as unfair, and the role of regulators in the enforcement of the legislation. Section 3 draws on work done by Professor Susan Bright in relation to the role of the Unfair Contract Terms Unit in the early days of the enforcement of the legislation.

16. Illegality

2019 ◽  
pp. 761-800
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Public Policy ◽  
Supreme Court Decision ◽  
Case Law ◽  
Court Decision ◽  
Exclusive Dealing ◽  
The Supreme Court ◽  
The Subject ◽  
The Uk ◽  
Restraint Of Trade ◽  
Selection Of

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract may be deemed illegal or void on grounds of public policy. This chapter examines the illegality of contracts under English law, contracts prohibited by statute (express prohibition), and contracts that are illegal in their performance. It considers contracts that are void on grounds of public policy, focusing on contracts in restraint of trade, covenants between employer and employee, exclusive dealing agreements, exclusive service agreements, and severance of the objectionable parts of covenants. The chapter also discusses the recovery of money or property transferred under an illegal contract, along with the UK Law Commission’s proposed reform of the law governing illegal contracts and the supreme court decision of Patel v Mirza over controversy concerning the nature of illegality, the basis for intervention in illegal contracts and the ability to recover under an illegal contract.

14. Misrepresentation

2019 ◽  
pp. 634-701
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
The Other ◽  
Original Position ◽  
False Statement ◽  
Contributory Negligence ◽  
Civil Remedies ◽  
Contractual Term ◽  
The Subject ◽  
Injured Party ◽  
Selection Of

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract may include a statement that is a mere puff, a representation, or a contractual term. In the case of a representation, the maker asserts the truth of certain facts and thus induces the contract. In case of an actionable misrepresentation (an unambiguous false statement of fact which induces the other party to enter into the contract), the contract may be rendered voidable, that is, liable to be set aside or rescinded. In some instances, the injured party may claim for damages designed to restore him to his original position. This chapter examines the identification of actionable misrepresentation, duties of disclosure, types of misrepresentations, rescission as a remedy, damages for misrepresentation, including the damages available in section 2 of the Misrepresentation Act 1967, and the effect of contributory negligence in any damages award. Finally, the chapter examines exclusion of liability for non-fraudulent misrepresentation and the effect of ‘non-reliance’ clauses in contracts. In the consumer context, it also notes the criminal offences in certain instances of misrepresentation under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the extension to include civil remedies for misleading actions.

9. Damages for breach of contract

2019 ◽  
pp. 399-490
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
Breach Of Contract ◽  
The Subject ◽  
Injured Party ◽  
Actual Loss ◽  
Selection Of

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Contractual damages aim to compensate the injured party for the loss suffered due to breach of contract. Damages for breach are compensatory and not punitive so that it is possible to recover only for the actual loss suffered by the injured party. This chapter considers the different measures to achieve compensation for loss suffered as a result of the breach and the limitations on the ability to be fully compensated in a breach of contract claim. It also discusses agreed damages provisions and their enforceability.

Sign in / Sign up

Export Citation Format

Share Document