Judgment
The Court of Appeal held that a previous course of dealing did not incorporate the term, because there was neither a regular nor consistent course of dealings. It went on to ask what would have happened were it incorporated, and held that the exclusion clause would still not have been effective to save Rambler Motors Ltd for liability, because it should be construed against the person relying on it (contra proferentum) and this clause covered more than negligence. A reasonable person would think liability for other things beyond the garage's own control would be excluded, but not the garage's own fault. Salmon LJ observed the following:
No doubt merchants, tradesmen, garage proprietors and the like are a little shy of writing in an exclusion clause quite so bluntly... Clearly it would not tend to attract customers, and might even put many off… in order for the clause to be effective the language should be so plain that it clearly bears that meaning. I do not think that defendants should be allowed to shelter behind language which might lull the customer into a false sense of security…
He refers to Scrutton LJ in Rutter v Palmer [1922] 2 KB 87 saying a clear clause excluding negligence liability "will more readily operate to exempt him." Also, in Alderslade v Hendon Laundry Ltd [1945] KB 189, Lord Greene MR was not seeking to extend the law, and here was quite different, because the reasonable person would see a number of other causes of fire. It would surprise an ordinary person if it applied to a fire caused by the garage’s own negligence (rather than an external cause). If they wanted to make exclusions for their own negligence 'they ought to have done so in far plainer language'.
Gross negligence is the "lack of slight diligence or care" or "a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party." In some jurisdictions a person injured as a result of gross negligence may be able to recover punitive damages from the person who caused the injury or loss.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 is an English tort law case on economic loss in English tort law resulting from a negligent misstatement. Prior to the decision, the notion that a party may owe another a duty of care for statements made in reliance had been rejected, with the only remedy for such losses being in contract law. The House of Lords overruled the previous position, in recognising liability for pure economic loss not arising from a contractual relationship, applying to commercial negligence the principle of "assumption of responsibility".
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
An exclusion clause is a term in a contract that seeks to restrict the rights of the parties to the contract.
Fundamental breach of contract, is a controversial concept within the common law of contract. The doctrine was, in particular, nurtured by Lord Denning, Master of the Rolls from 1962 to 1982, but it did not find favour with the House of Lords.
In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.
A Himalaya clause is a contractual provision expressed to be for the benefit of a third party who is not a party to the contract. Although theoretically applicable to any form of contract, most of the jurisprudence relating to Himalaya clauses relate to maritime matters, and exclusion clauses in bills of lading for the benefit of employees, crew, and agents, stevedores in particular.
L'Estrange v F Graucob Ltd [1934] 2 KB 394 is a leading English contract law case on the incorporation of terms into a contract by signature. There are exceptions to the rule that a person is bound by his or her signature, including fraud, misrepresentation and non est factum.
Olley v Marlborough Court Hotel[1949] 1 KB 532 is an English contract law case on exclusion clauses in contract law. The case stood for the proposition that a representation made by one party cannot become a term of a contract if made after the agreement was made. The representation can only be binding where it was made at the time the contract was formed.
Thornton v Shoe Lane Parking Ltd[1970] EWCA Civ 2 is a leading English contract law case. It gives a good example of the rule that a clause cannot be incorporated after a contract has been concluded, without reasonable notice before. Also, it was held that an automatic ticket machine was an offer, rather than an invitation to treat.
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd is a case concerning the sale of goods and exclusion clauses. It was decided under the Unfair Contract Terms Act 1977 and the Sale of Goods Act 1979.
English contract law is the body of law that regulates legally binding agreements in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth, from membership in the European Union, continuing membership in Unidroit, and to a lesser extent the United States. Any agreement that is enforceable in court is a contract. A contract is a voluntary obligation, contrasting to the duty to not violate others rights in tort or unjust enrichment. English law places a high value on ensuring people have truly consented to the deals that bind them in court, so long as they comply with statutory and human rights.
Smith v Eric S Bush [1990] UKHL 1 is an English tort law and contract law case, heard by the House of Lords. First, it concerned the existence of a duty of care in tort for negligent misstatements, not made directly to someone relying on the statement. Second, it concerned the reasonableness of a term excluding liability under the Unfair Contract Terms Act 1977, s 2(2) and s 11.
Interpreting contracts in English law is an area of English contract law, which concerns how the courts decide what an agreement means. It is settled law that the process is based on the objective view of a reasonable person, given the context in which the contracting parties made their agreement. This approach marks a break with previous a more rigid modes of interpretation before the 1970s, where courts paid closer attention to the formal expression of the parties' intentions and took more of a literal view of what they had said.
Karsales (Harrow) Ltd v Wallis [1956] EWCA Civ 4 is an English Court of Appeal decision which established fundamental breach as a major English contract law doctrine. Denning LJ MR gave the leading judgment replacing the Rule of Strict Construction, which require a literal approach to the construction of contract terms.
Canada Steamship Lines Ltd v R[1952] UKPC 1, also referred to as Canada Steamship Lines Ltd v The King, is a Canadian contract law case, also relevant for English contract law, concerning the interpretation of unfair terms contra proferentem. The case was decided by the Judicial Committee of the Privy Council on appeal from the Supreme Court of Canada, as the cause for appeal arose before the abolition of such appeals in 1949. Although arising in civil law under the Civil Code of Lower Canada, it has been influential in similar cases under English law, but is now recognised as providing "guidelines" rather than an "automatic solution".
Phillips Products Ltd v Hyland and Hamstead Plant Hire Co Ltd [1984] EWCA Civ 5 is an English contract law case concerning the Unfair Contract Terms Act 1977.
Woodman v Photo Trade Processing Ltd (1981) 131 NLJ 933 is an English contract law case concerning unfair contract terms.
Unfair terms in English contract law are regulated under three major pieces of legislation, compliance with which is enforced by the Office of Fair Trading. The Unfair Contract Terms Act 1977 is the first main Act, which covers some contracts that have exclusion and limitation clauses. For example, it will not extend to cover contracts which are mentioned in Schedule I, consumer contracts, and international supply contracts. The Consumer Rights Act 2015 replaced the Unfair Terms in Consumer Contracts Regulations 1999 and bolstered further requirements for consumer contracts. The Consumer Protection from Unfair Trading Regulations 2008 concerns certain sales practices.
Alderslade v Hendon Laundry Ltd [1945] KB 189 is an English contract law case, concerning the construction of exemption clauses, and the contra proferentem principle.
