Exclusion Clauses
... The person wishing to rely on the exclusion clause must show that it formed part of the contract. An exclusion clause can be incorporated in the contract by signature, by notice, or by a course of dealing. If the plaintiff signs a document having contractual effect containing an exclusion clause, it will automatically form part of the contract, and he is bound by its terms. ... Section 6(3) of the Unfair Contract Terms Act 1977 would now govern this exclusion clause. The implied condition that goods are fit for the purpose can be excluded as against a person dealing otherwise than as consumer only if the exclusion satisfies the reasonableness requirement. ... The exclusion clause may be contained in an unsigned document such as a ticket or a notice. In such a case, reasonable and sufficient notice of the existence of the exclusion clause should be given. ... This particular clause would now be unenforceable as a result of the legislative regulation of exemption clauses by s. ... Even where there has been insufficient notice, an exclusion clause may nevertheless be incorporated where there has been a previous consistent course of dealing between the parties on the same terms. ... In Spurling v Bradshaw [1956] , it was held that although the defendants did not receive the document containing the exclusion clause until after the conclusion of the contract, the clause had been incorporated into the contract as a result of a regular course of dealings between the parties over the years. ... Even if there is no course of dealing, an exclusion clause may still become part of the contract through trade usage or custom, as in the case British Crane Hire v Ipswich Plant Hire [1974], in which it was held that the terms would be incorporated into the contract, not by a course of dealing, but because there was a common understanding between the parties, who were in the same line of business, that any contract would be on these standard terms. ... Once it is established that an exclusion clause is incorporated, the whole contract will be construed to see whether the clause covers the breach that has occurred. ... The main rules of construction are Contra Proferentem, in which if there is any ambiguity or uncertainty as to the meaning of an exclusion clause the court will construe it contra proferentem, ie against the party who inserted it in the contract, as in Baldry v Marshall [1925] in which the Court of Appeal held that the requirement that the car be suitable for touring was a condition.