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Exclusion Clauses and Unfair Contract Terms

Exclusion Clauses and Unfair Contract Terms
13th Edition
Practice Area:  Commercial Law, Contract Law
ISBN:  9780414110908
Published by:  Sweet & Maxwell
Publication Date:  13 Dec 2022
Subscription Information:  Non-Subscribable Product
Format:  Hardback
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Exclusion Clauses and Unfair Contract Terms examines, in a detailed, practical, and incisive manner, this important area of contract law. It provides guidance to the practitioner on drafting and using exclusion clauses effectively within the formative phase of a contract. Additionally, it offers commentary on the possibility of  challenging an exclusion clause. The text deals with exclusion clauses and unfair contract terms in the context of both commercial and consumer contracts, considering the legal tests which are applied to determine whether the exclusion clause has been successfully incorporated, how it should be interpreted, and the extent to which it might be invalidated at Common Law and under statute.

Key features:
  • Considers the ways in which exclusion clauses are controlled by the judiciary and regulated by legislation
  • Examines unlawful, void and ineffective exclusion clauses
  • Explains in a straightforward and practical manner how to draft exclusion clauses that are lawful, valid and effective
  • Deals with exclusion clauses and unfair contract terms in the context of both commercial and consumer contracts
  • Provides wholesale review of the recent case law 
  • Analyses the courts’ interpretation of the meaning of “written standard terms” under the Unfair Contract terms Act.
  • Discusses how the courts are adjusting the process of construing exclusion clauses so as to harmonise this topic with the general principles of interpreting written contracts.
  • Considers in detail the impact of the Consumer Rights Act 2015.
New to this edition:

This title has been fully revised and updated by Professor Neil Andrews to take account of important case law developments of the last five years. 
  • Chapter 1 on incorporation extensively revised in light of Goodlife Foods v Hall Fire Protection Ltd (2018) 
  • New Chapter 2, concerned with exclusion clauses which are intended to protect third parties. (under the Contracts (Rights of Third Parties) Act 1999 or by use of a “Himalaya” clause).
  • Chapter 3 fully revised  to consider recent case law reflecting current approach to interpreting exclusion clauses 
  • New Chapter 4 which examines the important topic of liability for misrepresentation and exclusion clauses. 
  • Chapter 6 contains a detailed examination and critique of African Export-Import Bank v Shebah Exploration and Production Co Ltd (2017), where the Court of Appeal provided guidance on the crucial phrase “written standard terms of business”. 
  • Chapter 7 contains detailed examination of Goodlife Foods v Hall Fire Protection Ltd (2018) case’s the application of the statutory reasonableness test in a business-to-business context in Goodlife Foods v Hall Fire Protection Ltd (2018). 
  • In Chapter 8, concerning unfair terms in consumer contracts, the following case law is given new or fresh discussion: Roundlistic Ltd v Jones (2018), Casehub Ltd v Wolf Cola Ltd (2017), Higgins & Co Lawyers Ltd v Evans (2019), Parking Eye Ltd v Beavis (2015).
  • Chapter 9 is another new chapter dealing with liquidated damages clauses. Such a clause simultaneously fixes the minimum and maximum level of compensation. Where the clause prescribes a level of liability which is much less than the innocent party’s actual loss, the clause operates functionally to restrict  liability. This aspect has been noted by Lords Leggatt and Burrows in Triple Point Technology Inc v PTT Public Co Ltd (2021) (at [74], “such a clause limits the contractor’s exposure to liability of an otherwise unknown and open-ended kind”). 

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  • Chapter 1 Definitions and Incorporation
  • Chapter 2 Exclusion Clauses protecting Third Parties
  • Chapter 3 Interpretation and other Common Law Doctrines
  • Chapter 4 Exclusion Clauses and Liability for Misrepresentation
  • Chapter 5 The Unfair Contract Terms Act 1977: Some Preliminary Points
  • Chapter 6 The Unfair Contract Terms Act: Areas of Application
  • Chapter 7 The Reasonableness Test within the Unfair Contract Terms Act 1977
  • Chapter 8 Unfair Terms in Consumer Contracts
  • Chapter 9 Liquidated Damages
  • Chapter 10 Void and Effective Exclusion Clauses
  • Chapter 11 Unlawful Exclusion Clauses


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