Wills

Exempting Excluding and Limiting Terms

Exemption Clause:
Is a term of the lease inserted to exclude or limit the liability of cardinal or more of the parties.
Comes in 2 forms:
excluding terms: completely excludes one companys liability H&E train der Sterren v Cibernetics
limiting terms: does not exclude liability completely, just limits Darlington futures v Delco


Notice:
Exclusion article essential be brought to the notice of the party against whom it is to be used.
Comes in 2 forms:
Actual notice: existence & contents actually brought to the former(a)wise partys attention
Constructive notice: other party shouldve been aware of article as it was in an obvious confide e.g. conditions of entry sign. If written on reverse side of ticket, therefore not constructive.
Constructive notice applies:a. reasonable soulfulness would take on document to be contractual
b. proferens took reasonable steps to give other party notice
c. steps taken were before or at time contract was entered

Party seeking to rely on an exclusion clause must prove:
The clause was a term of the contract; and
On its true construction, it is wide tolerable to cover the claim brought by the P.





Non-contractual documents:
tickets, voucher, receipt: reasonable person would not feel obliged to read it.
Causer v countenance drycleaners - D couldnt rely on exemption clause mere receipt
Chapelton v Barry deck chair same as above

Contractual documents:
Provided that actual or constructive notice, exemption clause will be effective.

Reasonable steps requirement: clause set out clearly and unambiguously that P should attend to be contractual or if its a notice, because displayed so that a reasonable person would read it. Balmain invigorated Ferry Co v Robertson P had been on expound before, was aware of terms

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