Chapter Updates

6.5.2 Does the exclusion clause effectively cover the breach? – p 146

In The University of Keele v Price Waterhouse (2004), the Court of Appeal applied the contra proferentem rule to ambiguous contract clauses. In Decoma UK Ltd v Haden Drysys International Ltd [2005] All ER (D) 401 Jul, the court examined whether a contract clause should be considered ambiguous, where the contracting parties were commercial undertakings, regularly negotiating such contracts.

6.5.3 What effect does the Unfair Contract Terms Act 1977 have on the exclusion clause? – p 147

On p 147, it is indicated that the “general rule of the Act (s3) is that an exclusion clause imposed on a consumer.... or by standard terms of business is not binding unless it satisfies the Act’s requirement of reasonableness”. Section 3 was considered by the Court of Appeal in Keen v Commerzbank AG [2005] All ER (D) 239 Nov, in relation to a bank's contract of employment. The court determined that bank employees did not deal as ’consumer’ within s.3. Furthermore, the bank’s contract of employment was not to be regarded as ’standard terms of business’ within the scope of s.3.

6.5.4 The Unfair Terms in Consumer Contracts Regulations –p 149

On p 149, it is stated that, ‘The 1999 Regulations apply to any term in a contract concluded between a seller or supplier and a consumer, which has been individually negotiated”. This clearly indicates that the Regulations apply to express standard terms of contracting. In Baybut v Eccle Riggs Country Park Ltd [2006] All ER (D) 161 Nov, it was confirmed that the Regulations have no application to terms implied at common law.