9. Exemption clauses

This chapter begins the discussion of unfair terms. It deals with the common law rules relating to exemption clauses, and introduces the problems, as well as the benefits of standard form contracts. It looks at the common law rules dealing with incorporation and construction (interpretation) generally, and their use by the courts to deal with unfair exemption clauses, and the evolution of the use of such approaches in the light of legislative policing. In particular, it deals with incorporation by signature, notice (including the ‘red hand rule’), and a course of dealing, and looks at construction post-UCTA (Unfair Contract Terms Act 1977), and post-Investors, including the Canada Steamship rules and the distinction between limitation and exclusion clauses. The tension between freedom of contract and protecting the party with weaker bargaining power is emphasized. The chapter addresses how the Consumer Rights Act 2015 has impacted the law.