'Any term in a contract restricting, excluding or modifying a remedy or a liability arising out of a breach of a contractual obligation' . 'The company shall not be liable for any loss or damage, how so ever caused' . 'The company will be liable up to a maximum of £500 in relation to any claim' . 'All claims for breach of contract must be notified to the company within seven days of the alleged breach occurring' · 'Freedom of contract' versus 'protecting the weaker party' · 'Risk planning' versus 'standard form contracts' . 19th/20th Century - Common Law techniques 'incorporation' 'interpretation/construction' 'fundamental breach' · 1970s onwards - statutory control - - Unfair Contract Terms Act (UCTA)1977 - Consumer Rights Act 2015 · The question is (as is applicable to all 'terms' generally) 'was the clause part of the contract'? Cf Interfoto Picture Library v Stiletto Visual programmes (1988). . A clause cannot be effective to exclude liability if it is not part of the contractff . The rules are based on the principle that a party must have had reasonable notice of an exclusion clause at the time of the contract for it to be effectiveff · 1) Signature · - generally conclusive - L'Estrange v Graucob (1934) . - unless induced by false statement - Curtis v Chemical Cleaning and Dyeing Co (1951) • 2) Timing • -Olley v Marlborough Court Hotel (1949) • -Thornton v Shoe Lane Parking (1971) • 3) Previous course of dealing • -Hardwick Game Farm v Suffolk AA (1969) • - Hollier v Rambler Motors (1972) . 4) Nature of the document • -Chapelton v Barry UDC (1940) . 5) Reasonable notice - steps taken to draw the attention of the other party . - Parker v South Eastern Railway (1877) • -Thompson v LMS Railway (1930) · 4) Nature of the document • -Chapelton v Barry UDC (1940) · 5) Reasonable notice - steps 6) Nature of the clause (onerous) • -Spurling v Bradshaw (1956) - 'red hand' test- Per Lord Denning- 'Some exclusion clauses I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient' . - Thornton v Shoe Lane Parking (1971) · taken to draw the attention of the other party . - Parker v South Eastern Railway (1877) . - Thompson v LMS Railway (1930) . When it is determined that a clause has been incorporated into a contract, the next issue is whether the clause covers the breach that has occurredff
. The wording of the clause must be examined to determine if it applies to the particular situation in questionff · 'Contra proferentem' rule - The clause will be interpreted against the party seeking to rely on itff If there is ambiguity, it will be construed in favour of the claimant: - Andrews Bros v Singer & Co (1934) - Houghton v Trafalgar Insurance