p. 2516. Exemption clauses and unfair contract terms
- Robert Merkin KC, Robert Merkin KCProfessor of Commercial Law Reading Law School, University of Reading
- Séverine SaintierSéverine SaintierProfessor in Commercial Law Cardiff School of Law and Politics, Cardiff University
- , and Jill PooleJill Poole50th Anniversary Professor of Commercial Law and Head of Aston Law Deputy Dean, Aston Business School, Aston University
Abstract
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.
