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Exclusion clause
Exclusion clauses are terms, which have been inserted into a contract by one party to exclude or limit his civil liability for the consequences of a breach of contract or negligence on his part. On the other hand, one party may seek to incorporate such an exclusion clause into a contract by reference to conditions found on another document or on a notice or on a ticket.
Exclusion clauses like these can come in various e.g. Notices within cloakrooms, hospital changing rooms ect will state “The management will accept no liability whatsoever for loss of or damage to items deposited in this cloak room or changing room, whether such damages is caused by the negligence of our employees or otherwise. Limitations on the use of exclusion clauses can exist both at: Common Law and Statutory Law
Exclusion Clauses Limitations at Common Law
If exclusion clauses are incorporated into a contract, it will be effective at common law. Where an exclusion clause is an express term of the contract, then at common law it shall be upheld. However, The Unfair Contract Terms Act 1977 may render the terms ineffective even although they might be effective at common law.
If one party wishes to rely on the exclusion clauses within a ticket or a notice he will have to establish that the terms of the exclusion clause have been incorporated into the contract. The two key points are the nature in which the clause has been incorporated into the notice or ticket and the actual knowledge and acceptance of the person who hold the ticket:
The ticket should be of a type, which a reasonable person might expect to form part of a contractual documentation.
Reasonable steps must have been taken to bring the condition to the notice of the person receiving the ticket before the contract is formed.
The offer should state the exclusion clauses and should be made noticeable to the considering party. This will allow the considering party to decide whether he/she wants to enter into the contract. The effects of not identifying this to the offeree can be seen in the case of Taylor V, Glasgow Corporation 1952 S.C. 440 (Ticket: a voucher or a contractual document) where the exclusion clause was rendered to be ineffective which allowed Taylor to proceed with her case. It can also be seen within the case of Henderson V. Stevenson (1875) 2R. (H.L.) 71;(1873) 1R.215 (Ticket: condition on back).
Exclusion Clauses Limitations At Statutory Law
Exclusion clauses are now subject to control imposed by the Unfair Terms Act 1977 which is an act which limits the extent to which civil liability can be avoided by means of contract terms or by the use of none contractual notices.
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