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. 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.

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.

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.

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.

Poole's Textbook on Contract Law

2021 ◽  
Author(s):  
Robert Merkin QC ◽  
Séverine Saintier
Keyword(s):  
Contract Law ◽  
Third Party ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Detailed Treatment ◽  
The Law ◽  
Contractual Obligations ◽  
Unfair Terms

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This book has been guiding students through contract law for many years. It places the law of contract clearly within its wider context, including the growing distinction between commercial and consumer contracting, before proceeding to provide detailed yet accessible treatment of all the key areas encountered when studying contract law. Part 1 considers formation, looking in detail at agreement, certainty and agreement mistakes, the enforceability of promises and the intention to be legally bound. Part 2 looks at content, interpretation, exemption clauses and unfair terms, performance, and breach. Part 3 considers the enforcement of contractual obligations including remedies, detailed treatment of damages for breach of contract, privity and third party rights, and discharge by frustration. Part 4 looks at methods of policing the making of a contract, such as non-agreement mistakes which render the contract void, misrepresentation, duress, undue influence, unconscionable bargains, and illegality. The book also includes references to relevant EU consumer legislation and introduces students to the various attempts (international and European) to produce a harmonized set of contract principles.

JC Smith's The Law of Contract

2021 ◽  
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.

Poole's Textbook on Contract Law

2019 ◽  
Author(s):  
Robert Merkin QC ◽  
Séverine Saintier
Keyword(s):  
Contract Law ◽  
Third Party ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Detailed Treatment ◽  
The Law ◽  
Contractual Obligations ◽  
Unfair Terms

Course-focused and comprehensive, the series provides an accessible overview of the key areas on the law curriculum. This book has been guiding students through contract law for many years. It places the law of contract clearly within its wider context, including the growing distinction between commercial and consumer contracting, before proceeding to provide detailed yet accessible treatment of all the key areas encountered when studying contract law. Part 1 considers formation, looking in detail at agreement, certainty and agreement mistakes, the enforceability of promises and the intention to be legally bound. Part 2 looks at content, interpretation, exemption clauses and unfair terms, performance, and breach. Part 3 considers the enforcement of contractual obligations including remedies, detailed treatment of damages for breach of contract, privity and third party rights, and discharge by frustration. Part 4 looks at methods of policing the making of a contract, such as non-agreement mistakes which render the contract void, misrepresentation, duress, undue influence, unconscionable bargains, and illegality. The book also includes references to relevant EU consumer legislation and introduces students to the various attempts (international and European) to produce a harmonized set of contract principles.

1. Introduction to the law of contract

2019 ◽  
pp. 1-28
Author(s):  
Robert Merkin ◽  
Séverine Saintier
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, the Textbook on series 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 (and the fact that as of this date, the UK is still part of 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, the chapter gives detailed discussion on the scope of ‘good faith’, and whether there is an implied duty of good faith in performance. Finally, the chapter considers the implementation of the Consumer Rights Directive in a number of statutory instruments and the Consumer Rights Act 2015.

12. Discharge by frustration: subsequent impossibility

2021 ◽  
pp. 467-492
Author(s):  
Robert Merkin ◽  
Séverine Saintier ◽  
Jill Poole
Keyword(s):  
Contract Law ◽  
Legal Basis ◽  
Breach Of Contract ◽  
General Terms ◽  
Force Majeure ◽  
Common Purpose ◽  
Legal Position ◽  
The Common ◽  
The Law ◽  
Legal Consequences

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. In general terms non-performance constitutes a breach of contract. The contract may have expressly allocated the risk of certain external events which occur after the contract is made to one of the parties by means of a force majeure clause. The terms of this clause will determine the parties’ positions if the event in question occurs. In the absence of an express allocation of the risk, the frustration doctrine is a residual doctrine that governs when such frustrating events intervene, without the fault of either party. These frustrating events relate to impossibility, illegality or frustration of the common purpose of both parties. This chapter examines the legal basis of the frustration doctrine, when it applies, when it does not apply and the legal consequences of frustration on the parties’ positions. Frustration automatically terminates the contract for the future and, where it applies, the provisions of the Law Reform (Frustrated Contracts) Act 1943 govern the parties’ pre-existing legal position.

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.

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