The Pros And Cons Of Contract Contracts

Decent Essays
Formed contracts usually consist exclusion or exemption clauses limiting the liability of party/parties for contractual breach. These clauses aim at excluding the legal responsibilities of the parties for particular types of injuries, losses/damages sustained by the other party. However, the courts had made distinction between exclusion and limitation clauses limiting the amount of compensation for contractual breaches. Traditionally, the courts do not assess the exclusion clauses on merit grounds, to avoid contradicting the general idea of ‘freedom of contract’. Hence the courts, in order to supervise and for better use of these clauses; developed common law rules addressing incorporation and construction. Additionally, the governmental developed statutory regulations, Unfair Contract Terms Act (UCTA) 1977 dealing with business to business and consumer to consumer contracts…show more content…
However, if the clause is put forward after the contract, then it cannot be incorporated as seen in the cases of Olley v Marlbourough Court Hotel; and Thornton v Shoe Lane Parking. Incorporation can also be done by a course of previous dealings as the parties are fully aware of the terms and clauses that could form the part of the contract. Regularity and consistency in dealings is crucial, evident in the cases of McCutcheon v MacBrayne; and Hollier v Rambler Motors; where exclusion clause could not be incorporated due to a non-consistent course of conduct. In cases of onerous or unusual clauses, more efforts must be made to draw the attention of the party. Considering present case facts closely, it is established that the exclusion clause was incorporated into the contract through previous dealings as Jacob and Georgina has a business history and thus proving Georgina’s prior knowledge of the
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