Exclusion Clauses and Unfair Contract Terms

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Description
I am grateful to the publishers for their kind invitation to produce this 13th edition of this important work.
I pay tribute to the mass of erudition and comment which I have inherited from the author of the first 12 editions, Dr Richard Lawson.
In this new edition, Chs 1 to 3 examine the treatment of exclusion clauses at common law. Developments in the case law have required extensive revision of Chs 1 (on incorporation) and 3 (on interpretation).
Chapter 2 is a new and independent chapter concerned with exclusion clauses intended to protect third parties.
Chapter 4 is another new independent chapter. It examines the important topic of liability for misrepresentation and exclusion clauses.
Chapters 5 to 7 concern the Unfair Contract Terms Act 1977..
Chapter 8 concerns the statutory regulation of unfair terms in consumer contracts, now contained within the Consumer Rights Act 2015.
A new chapter (Ch.9) concerns liquidated damages clauses. This chapter has been added for two reasons. First, an agreed damages clause, which simultane- ously fixes the minimum and maximum level of compensation, can prescribe li- ability which turns out to be much less than the innocent party's actual loss and thus under-estimates the loss which in fact has resulted. In that situation, function- ally, the clause restricts liability. Secondly, the penalty doctrine is a judicial doctrine which can invalidate an intrinsically unfair contractual provision. For that additional reason, this topic forms part of a work concerned with "unfair" clauses.
Chapter 10 examines exclusion clauses which, as a result of a range of statutes, are simply rendered void and ineffective by statute.
Chapter 11 concerns exclusion clauses which can trigger criminal sanctions. It is clear that the law concerning exclusion clauses is still in a fluid state, at any rate at common law. There is a long series of modern judicial declarations (paras 3-005-3-029) that the "intellectual baggage" of contra proferentem construction and, in particular, the Canada Steamship principles, have been consigned to the juridical skip (except with respect to indemnity clauses). As Lord Hoffmann said in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 W.L.R. 896 at 912, in the House of Lords, "almost all the old intellectual bag- gage of 'legal' interpretation has been discarded". But it is not entirely clear how the courts will construe exclusion clauses, applying the modern criterion that judges will not assume that a party, by assenting to an exclusion clause, would agree to cede, wholly or partially, its ordinary and "valuable" substantive or remedial rights, that is, those rights, substantive or remedial, which would otherwise operate in favour of that party, whether expressly or impliedly, under the contract. Nor is it evident how the modern focus (summarised in Pt III of Ch.3) upon contextual interpretation (as distinct from yesterday's arid, semantic, "mechanistic", "artificial", "outmoded", "literalist" and hairsplitting pedantic ap- proach) will be applied in the modern case law (but, for the author's suggested distillation of modern principles of construction of exclusion clauses, see Item (iii) in the next paragraph).
Although the reader will require reference to detailed exposition of the complicated law in this field, he or she might also wish to use or reflect upon the author's considered suggestions as to how the law might be explained, developed
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Table of Contents

Part 1 Judicial Control
1. Definitions And Incorporation
2. Exclusion Clauses Protecting Third Parties
3. Interpretation And Other Common Law Doctrines
4. Exclusion Clauses and Liability for Misrepresentation
5. The Unfair Contract Terms Act 1977 : Some Preliminary Points
6. The Unfair Contract Terms Act : Areas of Application
7. The Reasonablenss Test within the Unfair Contract Terms
8. Unfair Terms in Consumer Contracts
9. Liquidated Damages
10. Void and Ineffective Exclusion Clauses
11. Unlawful Exclusion Clauses
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Author Details
Neil Andrews