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CAPE LAW UNIT 2: PRIVATE LAW

MODULE 2: CONTRACT LAW

Topic 4: Contractual Terms pt 3 Exclusion/Exemption Clauses

EXCLUSION/EXEMPTION CLAUSES

What are Exclusion Clauses?

This is an express term of the contract that seeks to either limit or exclude liability for breaches of the contract.
They act as contractual defences. There is nothing inherently objectionable about a clause of this kind. Provided
that, it has been included as a result of a clear voluntary agreement between the parties, it may simply indicate
their decision as to where certain risks involved in the transaction should fall. If the contract involves carriage
of goods, for example, it may have been agreed that the owner should be responsible for insuring the goods
while in transit. In that situation, it may be perfectly reasonable for the carrier to have very restricted liability
for damage to the goods while they are being carried. The inclusion of the clause is simply an example of good
contractual planning.

However, such clauses can be particularly harsh on the party subject to them and they often highlight the
inequality in bargaining strength that exist between different parties, notably providers for goods and services.
The principle of caveat emptor (meaning buyer beware) gave a great deal of leeway to a seller and very little
protection to a consumer. When such inequitable clauses began to appear with some frequency in the 19 th
century, the court devised ways of limiting their effectiveness. The judges developed common law rules to
prevent sellers from having an unfettered/unqualified discretion to avoid liability for their contractual breaches.

We will first look at the common law rules on exclusion clause and then the new statutory regime on exclusion
clauses.

A) JUDICIAL CONTROL OF EXCLUSION CLAUSES

By the principles that have been developed in the courts there is then potentially a three-stage process in
considering the extent to which a party having inserted an exclusion clause into a contract may rely on the
clause:

▪ Firstly, it must be shown that the exclusion clause is a term of the contract otherwise it could not be
relied upon (Incorporation)
▪ Secondly, a proper construction of the clause will determine whether it actually seeks to protect the
party inserting it into the contract in relation to the actual damage suffered or whether it is irrelevant or
extraneous
▪ Thirdly, a number of other test designed to restrict the use of such clauses will also need to be considered
and applied if necessary.

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1. Incorporation of Exclusion clauses

A clause cannot be effective to exclude liability if it is not part of the contract. The judges have shown a
willingness to redress the imbalance to which exclusion clauses can give rise. They have done so initially by
insisting on strict rules on incorporation of such clauses. Exclusion clauses are terms of the contract. In this way,
the rules on incorporation are generally interchangeable with rules regarding incorporations of other terms,
although the ones identified below are most specifically appropriate to exclusion clauses and were developed
in cases where such terms were in question.

A. Signed Agreements

As with terms in general, the initial proposition is that where a party has signed a written agreement the he is
prima facie bound by that agreement. This will apply generally even though the party caught by the exclusion
clause has not read the contract:

L’Estrange v Graucob [1934] 2 KB 394: Here, the purchaser of a vending machine was
subject to an exclusion clause in the signed agreement: ‘any express or implied
condition, statement or warranty, statutory or otherwise not stated herein is hereby
excluded’. The court held that the purchaser was bound by the exclusion clause in the
contract regardless of the fact that she had not read it.

B. Express Knowledge of the clause

An exemption clause will only be incorporated into a contract where the party subject to the clause has actual
knowledge of the clause at the time the contract was made. If a party has no knowledge of the clause at the
time of entering the contract then the other party cannot rely on the clause to avoid liability for contractual or
other breaches:

Olley v Marlborough Court Hotel [1949] 1 KB 532: Mr and Mrs Olley booked into the
hotel and at this point the contract was formed. When they later went out they left the
key at the reception, as required by the rules of the hotel. In their absence a third party
took the key, entered their room and stole Mrs Olley’s fur coat. When Mrs Olley sought
compensation from the hotel owners, they argued that they were not liable because of
an exclusion clause in the contract that ‘the proprietors will not hold themselves liable
for articles lost or stolen unless handed to the manageress for safe custody’. Mrs Olley
sued. The Court of Appeal rejected the hotelier’s defence. The court held that the clause
had not been incorporated in the contract since it was on a notice on a wall inside the
Olley’s room. At the material time when the contract was formed, the Olleys were
unaware of the clause and therefore had not been given no chance of negotiating
different terms. The court was not prepared to allow the hotel to rely on a clause that
was not part of the contract.

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On the other hand, where the parties have dealt on the same terms in the past it may be possible to imply
knowledge of the clause from those past dealings. In this case it may be possible to argue that the clause has
been incorporated into the contract as a term and can therefore be relied upon:

Spurling (j) Ltd v Bradshaw [1956] 1 WLR 561: The defendant had contracted to store
goods in the claimant’s warehouse over many years. On the occasion in question he had
stored a consignment of eight barrels of orange juice. When the claimant came to
recover the orange juice he found it missing. The defendant refused to pay for the cost
of storage and the claimant sued and the defendant counterclaimed (i.e sued the
claimant), alleging the claimant’s negligence for the loss. The claimant pointed to their
clause that excluded liability for any ‘loss or damage occasioned by the negligence,
wrongful act or default’ of them or their servants contained in a receipt sent to the
defendants. The defendants in turn argued that this was only sent out after the contract
was formed. The court nevertheless accepted the validity of the exclusion clause since
the parties had dealt on the same terms in the past. The court held that the defendant
was bound by the clause since he was aware of it from past dealings and the clause had
been consistently used in all prior dealings between the parties. the clause was
incorporated in the present contract if only by implication.

However, the courts will not allow a party to rely on past dealings to imply knowledge of an exemption clause
in order to incorporate it into the contract unless the previous dealings represent a consistent course of action.

McCutcheon v David MacBrayne Ltd [1964] 1 WLR 125: This case modifies ad refines
the principle in the previous two cases. The claimant had used the defendants’ ferries to
ship his car from Islay to the Scottish mainland on numerous occasions. Sometimes he
had been asked to sign a risk notes including an exclusion clause and on other occasions
he was not. on the occasion in question, the claimant’s relative, Mcsporran, took the car
to the ferry and on this occasion, he was not asked to sign a risk note. The ferry sank
because of the defendant’s negligence and the car was destroyed. The claimant sued for
compensation and the defendant’s tried to rely on the exclusion clause in the risk note
and on the receipt. The court held that the defendants could not rely on the exclusion
clause and must fail in their defence because there was not a consistent course of action
that allowed them to assume that the claimant knew of the exclusion clause so it was
not incorporated in the contract.

C. Sufficiency of notice of the exclusion clause

The courts will not accept that an exclusion clause has been incorporated into a contract unless the party who
is subject to the clause has been made sufficiently aware of the existence of the clause in the contract. This must
be before or at the time that the contract was formed. The obligation then, is firmly on the party inserting the
clause into the contract to bring it to the attention of the other party before it can be relied on, so that the party
who wishes to rely on the exclusion clause is relieved of liability for their contractual breach. Case on point:
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Parker v South Eastern Railway Co [1877] 2 CPD 416: The claimant left his luggage in
the cloakroom of the station and was given a ticket on paying a fee. The front of the
ticket, which contained a number and date, also said ‘See back’. On the back of the ticket
was a clause stating that the railway company would not be liable any luggage that
exceeded £10. The claimant, Mr. Parker’s bag was worth £24.50. His luggage was stolen
and he claimed compensation from the railway company. The defendant’s attempt to
rely on the exclusion clause failed at trial since the defendants could not show that they
had instructed the claimant to read the clause or had otherwise brought the claimant’s
attention to the existence of the exclusion clause. The trial judge put two questions to
the jury. Firstly, was the claimant aware of the special condition attached to leaving the
parcel? Was the claimant under any obligation to make himself aware of the conditions?
The jury answered ‘no’ to both questions. The defendant appealed. The Court of Appeal
ordered a new trial, on the basis that the proper test was whether the defendants had
given reasonable notice of the conditions contained on the ticket. Mellish LJ identified
that the real questions for the jury were as follows:
‘I am of the opinion, therefore, that the proper direction to leave to the jury in these cases is that if the
person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by
the conditions; that if knew there was writing, and knew or believed that the writing contained conditions,
then he is bound by the conditions; that if he knew there was writing on the ticket, but did not know or
believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket
to him in such a manner that he could see there was writing upon it, was in the opinion of the jury,
reasonable notice that the writing contained conditions.’

An exclusion clause will not be incorporated into the contract when, on an objective analysis, it is not contained
in a document that would ordinarily be perceived as being a contractual document or having contractual
significance. Case on point:
Chapelton v Barry Urban District Council [1940] 1 KB 532: The claimant hired deckchairs
on the beach at Barry, and received two tickets from the council’s beach attendant on
paying the cost of hiring the chairs. On the back of these small tickets were the words
‘The council will not be liable for any accident or damage arising from the hire of the
chair’, though the claimant did not read it, believing it to be only a receipt. The canvas
on one chair was defective and it collapsed, injuring the claimant as a result. He claimed
compensation and the council then tried to rely on its exclusion clause. The court would
not accept the legitimacy of the clause and the defence failed since the existence of the
clause was not effectively brought to the attention of the claimant. The court held that
it was unreasonable to assume that the claimant would automatically understand that
the ticket was a contractual document. The council was therefore liable for the
claimant’s injuries.
The exclusion clause might not be incorporated either where reference to it is contained in another document
given to the claimant prior to the formation of the contract but where insufficient is done to bring the claimant’s
attention to the existence of the clause.
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Dillion v Baltic Shipping Co Ltd [1991] 2 Lloyd’s Rep 155 NSW: A woman booked to go
on a cruise with her daughter. In the booking form there was a clause that the contract
of carriage was ‘subject to conditions and regulations printed on the tickets’. In fact, the
contract of carriage would only then be issued some time later, at the same time as the
tickets. During the cruise the ship sank and the claimant was injured as a result. When
the woman claimed for compensation the defendant shipping company sought to rely
on the exclusion clause in the contract of carriage. The defence failed. The court held
that there was insufficient notice given in the book form actually to draw the claimant’s
attention to the existence of the exclusion clause and it could not be relied upon to avoid
liability for negligence.
One further questions concerns the precise extent to which parties inserting exclusion clauses in contract must
go in order to claim that they are brought sufficiently to the attention of the other party and therefore
incorporated in the contract. Judges have stated that a party seeking to rely on an exclusion clause in order to
avoid liability has a very high duty to achieve this end. The case considered below is relevant to the requirement
that the party subject to the clause must be aware of the clause at the time of contracting. The case puts into
perspective some of the problems of modern forms of contracting. These include dealing with vending
machines, ticket machines or other situations where there is no actual contact with the party seeking to insert
the clause or his agents at the time when the contract is formed.
Thorton v Shoe Lane Parking Ltd [1971] 2 QB 163: The claimant was injured in a car park
owned by the defendants. At the entrance to the car park there was a notice that, as
well as identifying the charges for parking, also stated that parking was at the owner’s
risk. On entering the car park, a motorist was required to stop at a barrier and take a
ticket from a machine, at which point the barrier would lift allowing entry to the car park.
On each ticket was printed the words: ‘This ticket is issued subject to the conditions of
issue displayed on the premises’. Notices inside the car park then listed the conditions
of the contract and these included a clause excluding liability for both damage to
property and for personal injury. When the claimant sued for compensation for his
injuries, the defendants argued that he was bound by the exclusion clause but the court
rejected their argument. It was held that there was insufficient attempt made to draw
the claimant’s attention to the existence of the clause for the defendant to be able to
rely on it to avoid liability.
‘Lord Denning identified that the customer in such situations has no chance of negotiating. He pays his
money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine,
even swear at it. But it will remain unmoved. He is committed beyond recall; the contract was concluded
at that time. In consequence, Lord Denning says the customer is bound to the terms of the contract as long
as they are sufficiently brought to his notice before hand, but not otherwise. In other words, for the party
including the clause in the contract, a very high degree of notice is required for it to be effective. As he had
previously stated, in Spurling v Bradshaw, when looking at what needs to be done to draw a clause to the
attention of the party subject to it; some clauses which I have seen would need to be printed in red ink with
a red hand pointing to it before the notice could be held to be sufficient.

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The rules on incorporation of terms apply both to the usual terms and to exclusion clause, since these are very
specific type of term with very particular consequences. Court are prepared to apply this strict approach not
only to exclusion clauses but also to other terms that could be disadvantageous to a party subjected to them.
The courts have adopted the same position in contracts containing clauses that are particularly burdensome to
the other party regardless of the clause not being an exclusion clause.
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1988] 2 WLR 615: The
defendants hired photographic transparencies for a visual aid in a presentation, from a
party with whom they had no previous dealings. In the claimant’s delivery note, which
the defendants did not read, was a clause referring to a hold fee and VAT for each day
when the transparencies were not returned past a deadline, 19th March. When the
defendants returned the transparencies on 2nd April they were presented with a bill for
£3,783.50 in respect of the holding charge for late return. The claimants sued when the
defendants refused to pay, and succeeded in their claim.

2. Construction of the Clause in the Contract (Interpretation)

Once it has been decided that a clause has been incorporated into the contract, the next issue is whether it
covers the breach that has occurred. In other words, the wording of the clause must be examined to see if it is
apt to apply to the situation which has arisen. This is called the rule of construction. The clause is being
constructed or interpreted to determine its scope.
The rules of construction, like the rules of incorporation, are of general application, and can be used in relation
to all clauses within a contract, not just exclusion clauses. The rule of construction has been used as a means of
limiting the effect of exclusion clauses. One aspect of the rule of construction is the (1) contra proferentem rule.
This rule is a device that can be applied whenever a contract contains ambiguities. The basic principle is that if
a party wishes to secure an exclusion clause from liability for contractual breaches by means of incorporation
of an exclusion clause into the contract, then the clause must be specific as to the circumstances in which the
exemption is claimed. If the clause is in fact in any way ambiguous then the ambiguity is said to work in favour
of the other party so that the clause will fail. Case on point:
Andrew Bros Ltd v Singer & Co [1934] 1 KB 17: The contract was for the sale and
purchase of what were described in the contract as ‘new singer cars’. The contract
contained a clause excluding ‘all conditions, warranties, and liabilities implied by statute,
common law or otherwise. One car delivered under the contract was technically
speaking, a used car because a prospective purchaser had used it. the dealer then sued
for damages and tried to rely on the clause in defending the claim. The Court of Appeal
held that the supply of ‘new singer cars’ was an express term of the contract. Since the
exclusion clause actually applied to implied terms, the contra proferentem rule would
prevent it being used in relation to express terms. The exclusion clause could not be
relied on and the defence failed.

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The effect of the contra proferentem rule as applied to exclusion clauses then is that, where there is any
ambiguity in the contract, said ambiguity will work against the party seeking to rely on the clause rather than
the party subject to it. The party inserting the clause into the contract cannot rely upon it to avoid liability unless
it clearly and precisely covers the circumstances on which the claim is based. Case on point:
Holier v Rambler Motors Ltd [1972] QB 71: Holier left his car with the garage for repair
as he had done on occasions in the past. The normal conditions of the contract were
contained in a form that Holier had signed on previous occasions but not on the occasion
in question. This form included a term that: ‘The company is not responsible for damage
caused by fire to customers’ cares on the premises’. The car was damaged in a fire that
was caused by the defendant’s negligence. The car owner sued for compensation and
the garage owner tried to rely on the clause excluding liability for fire. The Court of
Appeal held firstly that the form was not incorporated into the contract in this case
merely because of the previous course of dealings. It also concluded that for the garage
to rely on the exclusion clause it must have stated in it without any ambiguity that it
would not be liable in the event of its own negligence. In the absence of such precise
wording the customer might rightly conclude when making the contract that the garage
owners would not generally be liable except where the fire damage was caused by their
own negligence when they would naturally be liable.
Another method of construction the courts developed and at one time employed to combat the effectiveness
of over-wide exclusion clauses was what was known as (2) the doctrine of fundamental breach. The court
considered that some breaches of contract are so serious that no exclusion clause can cover them. The doctrine
took two forms. Firstly, that there are certain terms within a contract which are so fundamental that there
cannot be exclusion for breach of them. Secondly, it looked not at the particular term which had been broken,
but at the overall effects of the breach which had occurred. If the breach was so serious that it could be said to
have destroyed the whole contract, exclusion of liability should not be possible.
The effect of these two forms was that the court would find the exclusion clause to be ineffective. The judges
would treat the fundamental breach as a breach of the whole contract, and therefore the other party would be
able to treat the contract as repudiated. The party inserting the exclusion clause would have then be unable to
rely on the clause. Cases on point:
Karsales Ltd v Wallies [1956] 1 WLR 936: The purchaser contracted to buy a second-
hand car under a hire-purchase agreement. In the written agreement was a clause
stating that: ‘no condition or warranty that the vehicle is roadworthy, or as to its age,
condition or fitness for any purpose is given by the owner or implied herein’. Although
the purchaser had previously examined the car and found it satisfactory, when it was
delivered the cylinder head had been removed; valves in the engine had burn out; two
pistons were damaged; the tyres were damage; and the radio was missing. The
purchaser, rejected the car. When he was sued, the claimant tried to rely on the
exclusion clause in the hire-purchase agreement. The Court of Appeal rejected the
argument. The court held that there had been a fundamental breach of the contract.
There was such a substantial difference between the contract as formed and the
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contract as performed that the breach went to the root of the contract; the central
purpose of the contract was defeated by the breach; and the claimant was unable to rely
on the exclusion clause to avoid liability.
Harbutt’s Plastine Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447: the contract
involved the supply of pipework in the claimant’s factory. The type of piping used was
unsuitable, and resulted in a fire which destroyed the whole of the claimant’s factory.
The obligation to supply piping that was fit for its purpose could clearly have been broken
in various ways, not all of which would have led to serious damage to the claimant’s
premises In this case, however, the consequences of the defendant’s failure to meet its
obligation in this respect were so serious that the Court of Appeal regarded it as a
fundamental breach of the contract, precluding any reliance on an exclusion clause.
The above two cases highlighted the 2 dimensions of the doctrine of fundamental breach. In that it could occur,
either through the breach of a particularly important term, or through a breach which has the consequences of
destroying the whole basis of the contract.
Despite its benefits, the doctrine was not universally popular with judges. The clear argument against its
application was that it undermined the basic principles of freedom of contract. Judges were also conscious of
the fact that there could also be uncertainty as to what amounted to a fundamental breach. The courts gradually
moved to a position where they considered that the doctrine was unsustainable and that the doctrine was
merely a method of construction rather than a rule of law negating what the parties had freely decided between
themselves. Cases on point:
Suisse Atlantique Societe d’armement Maritime SA v Rotterdamsche Kolen Central
(The Suisse Atlantique Case) [1967] 1 AC 361: The owners of a ship sought to sue the
party who had chartered the vessel and were to pay them on the basis of the number of
journeys made. The owners claimed, and it was accepted by the court, that breaches of
the term concerning loading and unloading meant that the party chartering the vessel
had made only eight voyages instead of the fourteen that they might have been
expected to complete. The charterparty argued that their liability was limited to a fixed
amount of $1,000.00 per day rather than the actual loss, by virtue of a limitation clause
in the contract. The ship-owners countered this and argued that the charterer’s breach
was so serious that the clause should not apply, and that they should be able to recover
their full losses. In other words, there was a fundamental breach as a result of which the
limitation clause could not apply. The case was decided on the basis that the clause was
not a limitation clause but a genuine liquidated damages clause, and in any case it was
felt that there was no fundamental breach. Nevertheless, the House of Lords expressed
the view that the doctrine of fundamental breach was a restriction on freedom of
contract. The House expressed the view that the argument of fundamental breach was
not a substantive rule of law which meant that certain types of breach automatically
prevented reliance on an exclusion clause.
“Lord Upjohn explained: there is no magic in the words ‘fundamental breach’ it is no more than a
convenient shorthand expression for saying that a particular breach or breaches of contract by one party
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is or are such as to go to the root of the contract which entitles the other party to treat such breach or
breaches as a repudiation of the whole contract. Whether such breach or breaches do constitute a
fundamental breach depends on the construction of the contract and on all the facts and circumstances of
the case”.

“Viscount Dilhorne identified the rule as one of construction and explained the potential consequences of
the doctrine: it is not right to say that the law prohibits and nullifies a clause exempting or limiting liability
for a fundamental breach of a fundamental term. Such a rule would involve a restriction on freedom of
contract and in the older cases I can find no trace of it”.

The House was of the opinion that the parties should generally be allowed to determine their obligations and
the effect of exclusion clauses in their contract. If there was a breach which appeared fundamental, then it was
a question of trying to determine the parties’ intentions as to whether such a breach was intended to be covered
by any exclusion clause.
The courts have subsequently taken a more relaxed view towards exclusion clauses in commercial contracts. In
such contracts the parties contract on the basis of a more equal bargaining strength and have possibly had more
freedom to negotiate the terms of the contract. As a result, the courts have been prepared to accept that a
clause may be upheld where the parties have freely and genuinely agreed it at the time the contract was formed.
Case on point:
Photo Productions Ltd v Securicor Transport Ltd [1980] AC 287: Securicor had
contracted under its own standard terms to provide a night patrol service at Photo
Productions’ factory. A clause in Securicor’s standard terms stated that: ‘under no
circumstances shall the Company be responsible for any injurious act or default by any
employee of the company unless such act or default could have been foreseen and
avoided by the exercise of due diligence on the part of the Company as his employer’.
The duty security officer on the night in question started a fire that got out of control
and as a result burnt down a large part of the factory. It was not disputed that he was
suitable for the work, nor was it considered that Securicor was negligent in employing
him. The trial judge accepted that the exclusion clause applied and held with Securicor.
The Court of Appeal, however, applied the doctrine of fundamental breach, determined
that the whole contract was effectively breached so that Securicor could not rely on the
exclusion clause and found in Photo Productions’ favour. The House of Lords, however,
reversed the decision of the Court of Appeal. The House affirmed that parties dealing in
free negotiations were entitled to include in their contracts any exclusions or limitations
or modifications to their obligations that they chose by which those parties would be
bound. Since the clause was clear and unambiguous there was nothing to prevent its use
and it therefore protected Securicor from liability for its employee’s actions.
The doctrine has been abandoned in certain circumstances and in these cases, it is immaterial how serious the
breach is. It appears that an exclusion clause may still stand in common law if two requirements are met:
▪ The clauses seeking to exclude or limit liability occurs in a contract in which the parties are dealing with
equal bargaining strength.
▪ The clause seeking to exclude or limit liability is clearly and unambiguously stated in the contract itself.
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It may still be difficult to decide in particular cases, however, what to do where a breach effectively negates the
whole purpose of the contract. It is a matter of looking at the precise wording of the exclusion clause and trying
to determine the intentions of the parties in relation to it. the likelihood of exclusion being effective will
decrease with seriousness of the breach, but it now always a question of balance, rather than the application of
a firm rule.

3. Other limitations on the use of exclusion clauses

Besides ensuring that the clause is properly incorporated into the contract, constructing the clause and the
contract itself to ensure that the clause properly convers the breach, judges have used other devices to
determine whether or not an exclusion clause is valid and can be relied upon by the party inserting.
Inconsistent oral representations
A party is generally bound by a contract which he has signed. In some circumstances, however, the party
subjected to the clause may have enquired about the existence of the clause or queried the precise
consequences of a clause that they have already read. Case on point:
Curtis v Chemical Cleaning and Dyeing Co Ltd [1951] 1 KB 805: The claimant took a
wedding dress to be cleaned and was asked to sign a document that contained a clause
exempting the defendants from liability for any damage ‘howsoever arising’. She
sensibly questioned the nature of the document that she was being asked to sign. The
sales assistant then informed her that the clause only referred to the fact that the
defendants would not accept liability for damage to beads or sequins attached to the
dress. When the dress was returned it had a chemical stain for which Mrs. Curtis tried to
claim. She sued the cleaning company which countered with the exclusion clause. The
defendant failed in their attempt to rely on the exclusion clause because of the oral
assurances made to the claimant.
If an oral misrepresentation has then caused that party to enter the contract with confidence, the exclusion
clause may be ineffective because it is the misrepresentation that has induced the other party to enter the
contract. An oral representation made before the contract is formed can override an inconsistent express term
within the written document. This principle applies to terms generally and can obviously also apply in the case
of exclusion clauses. Case point:
J Evans & Son Ltd v Andrea Merzario ltd [1976] 1 WLR 1078: The claimant has regularly
contracted with the defendants, as carriers of machinery, on the defendant’s standard
forms. The machines had always been carried below decks because they were liable to
rust otherwise. The carriers then changed to using containers stored on deck. The
claimants were then given an oral assurance that their machinery would still be stored
below decks. When one machine was put in a container and by error stored on deck, it
fell overboard. The Court of Appeal accepted that the defendants were bound by the
promise made by their representative to continue to carry the claimant’s machinery
below deck. This oral assurance overrode any inconsistent term in the contract. The
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standard forms did not in fact represent the actual agreement made, and the defendants
were liable.

STATUTORY CONTROL OF EXCLUSION CLAUSES

The Consumer Protection Act of Jamaica has stepped in to assist the common law rules on exclusion clauses.
You must read the following sections of the act to see what improvement the legislature has made in this regard.
See the following sections: 36, 37, 38, 39, 40, 41 and 43

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