acca考试f公司法与商法十总汇.docVIP

2014年ACCA考试F4公司法与商法第十章总汇 本文由高顿ACCA整理发布，转载请注明出处 　　10 Exclusion clauses?　　1 Definition 　　1.1 Attempt to exclude liability in whole or in part for negligence or contractual liability.? 　　2 Case law rules 　　2.1 The exclusion clause must be communicated to the offeree before he accepts the contract: Olley v. Marlborough Court Ltd. 　　2.1.1 If a term is included in a document notice of the term must be given before completion and the document must be one which could be expected to contain terms: Chapleton v Barry UD.C. 　　2.2 Must be clearly incorporated into contract: 　　(a) Generally, if a person signs a contract he will be bound (LEstrange v. Graucob) unless there was a mistake or misrepresentation. 　　(b) Oral assertions can override exclusion clauses making them ineffective: Curtis v. Chemical Cleaning Co. 　　(c) A clause may be incorporated by a course of dealings: Hollier v Rambler Motors. 　　2.3 Where a term is particularly unusual and onerous it should be highlighted. Failure to do so may mean that the clause is not incorporated. 　　2.4 Wording must be sufficient to exclude the liability in question: 　　(a) Ambiguities will be construed against the party relying on them ‘contra proferentum rule’. 　　(i) Court presumes a clause is not intended to defeat main purpose of contract. 　　(ii) However a clause can be drafted specifically to exclude liability for a fundamental breach: Photo Productions v Securior Transport ltd. 　　NB: Would now be subject to ‘reasonableness’ test.? 　　3 Unfair contract terms act 1977 　　3.1 (a) The Act applies to exclusion clauses used in a business (including a profession) and says:? 　　(b) Business liability is that arising from: 　　from occupation of premises for business purposes. 　　3.2 Act applies to contracts with businesses and contracts with consumers. 　　3.3 “Consumer” defined in Act as: 　　(a) Person not making contract in course of business. 　　(b) For SOGA contracts goods will be for private use. 　　(c) Other party does act in course of busin