Questions
1
To what types of clause does UCTA apply?
2
If a clause doesn’t fall within UCTA, are there any
other ways that someone might challenge its fairness?
3
‘Section 2 of the Act is tied to a particular type of
behaviour; sections 6 is tied to particular types of terms in particular types
of contracts; section 3 is of much more general application.’
Explain.
4
When is possible to exclude liability for
misrepresentation?
5
In the majority of cases the validity of an exemption
clause under UCTA turns on whether it satisfies the requirement of
reasonableness. Is this an unpredictable exercise of discretion, devoid of
clear principle?
6
Which provisions, if any, of the Act would apply to the
following clauses?
(a)
‘Sellers undertake
to use their best endeavors to meet the delivery date of 15th August
but they are to be under no liability if they cannot do so for reasons beyond
their control.’
(b)
‘In the event of the works not being completed by the
specified date (otherwise than for reasons beyond the Builder’s control) the
Builder shall pay to the Owner the sum of £500 per day while the works remain
uncompleted.’
(c)
‘Complaints about
conformity of goods delivered under the contract will only be entertained if
made within one month of delivery.’
7
A clause in a contract for the refurbishment of small
office premises provide as follows:
‘10 Owner will make the specified payments
for each stage on receipt of a certificate of completion from the Builder’s
surveyor and there will be no right to withhold any such payment for any reason
whatever.’
Most of the Builder’s contract form
is copied from that of the Construction Association but this clause was added
by Fred, the managing director, who is doing a part-time law course at the
University of Middletown.
To what extent is this clause
vulnerable under the Unfair Contract Terms Act?
8
Buyer contracts to
buy from Seller a quantity of second hand industrial electric motors of various
types. The contract provides:
‘Buyer agrees that he has seen, tried and inspected
the goods and Seller gives no warranty or undertaking whatsoever in respect of
any matters which would not be revealed by such trial or inspection. Goods to
be taken with all faults.’
Buyer did in fact make a fairly detailed inspection. A
short while after delivery, Buyer discovers that a number of the motors (type
I) have such serious defects (which would not have been revealed without
stripping them down) that they are not economically repairable. A number of
other motors (type II) turn out to be the property of Xerxes, who successfully
reclaims them from Buyer.
Advise B.
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