6. Exemption Clauses and Unfair Terms

Abstract

This chapter discusses the common law and statutory rules governing exemption clauses, and the control of unfair terms. Written contracts frequently contain clauses excluding or limiting liability. This is particularly so in the case of ‘standard form’ documents drawn up by one of the parties or a trade association to which one of the parties belong. At common law there are special rules on the incorporation of exemption clauses, special rules of construction applicable to them, and a few miscellaneous other common law rules designed to control them. The chapter first considers those common law rules before going on to the legislative control of exemption clauses and unfair terms. The focus of the discussion of statutory control is the Unfair Contract Terms Act 1977 for non-consumer contracts, and the Consumer Rights Act 2015 for consumer contracts.