Masters
Case Study
Miscellaneous
Pages 10 (2510 words)
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An exclusion clause seeks to exclude from a contract some term (such as one imposing a duty of care) that would otherwise be implied; a limitation clause seeks to limit liability for any breach of such a term.
The general rule is that the parties are free to determine the terms of their own contract…

Introduction

Hence in Olley v Marlborough Court Hotel [1949] the claimant's fur coat was stolen from her hotel room. There was a notice on the back of the bedroom door excluding liability for the theft of precious items which were not left with the manageress. The Court of Appeal decided that as the claimant had signed the contract before leaving her coat in her hotel room the exclusion was not part of the contract.
Consumer contracts are governed by two pieces of overlapping legislation, the Unfair Contract Terms Act (1979) and the Unfair Terms in Consumer Contracts Regulations (1999), which we shall refer to as the UCTA 1979 and UTCCR 1999 respectively. It should be noted from the outset that a claimant may only seek redress from a disputed contractual term under the UTCRR 1999 if the disputed term falls within the ambit of the Sale of Goods legislation. The UCTA 1979 is broader in scope, but does not cover all types of contract and is limited to exclusion and limitation clauses.
Looking at the decided cases in this area it would appear that the court first determines whether the disputed clause(s) is 'unfair' within the meaning of the legislation, and then looks at whether the plaintiff meets the requirement to be dealing with a business as a consumer. The rationale seems to be the way in which the remedies work. ...
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