This post is curtesy of the Exclusion Clause a derivative chapter off the Law Of Contract. Blame them.
The exclusion clause.
Is very, very irritating because the main emphasis is all those grandmother stories on the common law control and statutory control over the thing.
In the common law bit, Lord Denning (the old pissfart with too much to say but is, in all our minds, the greatest man there ever lived to cause so many problems for law students) didn't like the exemtion clauses because it's used by BIG companies to pick on small companies but hang on a moment... What is an exclusion clause?
An exclusion clause is in all factual means a way to get your butt out of trouble with regards to a contract that you may have signmed a fortnight ago. In more refined legal jargon-esque english: a party to a contract may seek to avoid incurring liability for certain breaches of the contract or may specify that their liability for a particular breach in the contract will be limited to whatever they had specified, usually to whatever amount in damages.
Example...
Assuming that you go to to Tioman for a USD 5000 (say that you're an undernourished student with a lack of funds) diving trip and have your trusty underwater camera with you. You snap alot of pictures of very pretty sealife and that harassing moray eel that is particularly camera shy and you're very happy with what you have. Assuming you are using a camera which still uses film. Kodak film. You come back to your country of origin and go to your film developer. A half assed pink-pop bubblegum chewing dolt behind the counter picks up your film and passes you a paper. You sign it. A week later you happily shove your face into the shop and demand your amazingly professional shots and she shrugs and says that she's over exposed it and accidentally left the film in acid so it's now lost forever. You get angry and demand to see the manager to threaten to sue for emotional damages. The dolt behind the counter swings her locks of blonde hair, glares at you in a very cocky manner and points out that you have just signed an exclusion clause which states that the shop bears no liability whatsoever to any film lost or damaged and if so would only replace with another film canister. All you can do now is tell the manager to fire the incompetent little shit and go home morose beating yourself up over a tub of icecream.
Boo-hoo.
Back to the bits from the common law.
Common law...
*read read read squints read mumbles read swears read nods and cracks fingers*
... points out that the bums in the court had made life harder for the BIG firms and probably the rest of us by making questions to regulate an eclusion clause. Firstly, by questioning whether or not the clause had been incorporated into the contract and secondly, whether the words used in the clause can be construed as covering the alleged branch.
There are several ways in which you can incorporate a clause into a contract and they are:
(a) by signature
(b) by reasonable notice
(c) by previous course of dealing
(a) is pretty easy. It means that if you sign an agreement of some sort, you have therefore understood and accepted all terms within that paper even if technically you didn't bother to read anything thats written on it.
See the case of L'Estrange v Graucob (1934) where a woman had signed a hire-purchase agreement for a cigarette vending machine but didn't read it. The agreement had in it, in tiny prints, a large basis of exemption from liability for the product. The machine proved defective and she couldn't do anything about it as she was bound to the clause, and therefore had no remedy.
Of course the rule doesn't apply when there is a misrepresentation as to the nature of the document signed.
See the case of Curtis v. Chemical Cleaning and Dyeing Co. (1951) in which Ms. Curtis had brought a dress to the cleaners where they had asked her to sign a document which exempted the cleaners from being liable for 'any damages however arising'. When she enquired, it was said that the document merely stated that the cleaners would not accept any liability on the sequins and beads on the dress. She signed it. When she came back to collect her dress, there was a new stain which was not there previously but the cleaners denied liability. The Court of Appeal held that the cleaners could not rely on the document since there was a misrepresentation.
(b) means that the terms can oly be incorporarted if the person had enough time to consider them. It very much depends on the mode in which it was presented.
See the case of Parker v. South Eastern Railway (1877) where the palintiff left his bag in the cloakroom and collected a ticket after paying 2p. The front of the ticket had the opening hours of the cloakroom and the words 'See back'. Upon his return, the bag was missing and when he went to claim the amount he only got back 10 pounds since it was written in the back of the ticket. The Court of Appeal stated that the party could have been deemed to have reasonable notice.
Things that should be taken into account would be (1) time of notice, (2) form of the notice and (3) effect of the clause
(1) Olley v. Marlborough Court Ltd. (1949) where a married couple booked into a hotel for a week, and then went to their room. On the wall, they found a notice which states that the hotel was not liable for the loss of the guests' property. Mrs. Olley returned to the room after a day out and found that she had her fur coats stolen. The hotel disclaimed any liability relying on the notice but the Court of Appeal held that the words had not been incorporated into the contract since it came to the Olley's notice too late. The contract was signed at the front desk, and a new term could not be imposed on them when they reached their room.
(2) Chaperlton v. Barry (1940) where the plaintiff had hired 2 chairs and upon hiring had recieved 2 tickets which he kept in his pocket. When he sat down on the chair, it collapsed and caused some injury. He sued the appalent who relied on the fact that on the tickets it stated that they were not liable for 'any accident or damage arising from the hire of the chair'. The Court of Appeal held that the clause was not part of the contract as the ticket acted only as a reciept and the resonable man wouldn't have expected it to contain contractual terms.
(To be continued when I feel like it...)
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