Exclusion clauses

At one time, particularly in the field of the sale of goods, the small print of the contract would often contain clauses, usually called exclusion clauses, which took away from the consumer the rights given him under such legislation as the Sale of Goods Acf. The use of such clauses is now subject to the controls imposed by the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999 . 

In sales to a consumer, the Act does not allow the seller to avoid the obligations which are imposed on him by the Sale of Goods Act (see section 1.6.2 above). Even to try to avoid the obligation is a criminal offence under the provisions of the Consumer Transactions (Restrictions on Statements) Order 1976  

In the case of sales to other businesses, exclusion clauses will be effective, but only if they are reasonable. Similar constraints are imposed in relation to contracts where possession or ownership of goods passes, but the contract is not one of sale or hire-purchase. 

The same Act also controls the operation of other types of exclusion clause when incorporafed info a consumer contract or in a contract which is on written standard terms. The principle is that three types of clause which might be used in such a contract are valid only if they can be proved to be reasonable such clauses are those which  

Suppose that a term in a holiday contract says that a person may have to share a room if the tour operator so decides instead of getting a single room that he has booked. This will be a clause seeking to provide a performance substantially different from that reasonably expected. Under the Act, this clause will not be valid unless tire tour operator can prove it was reasonable. Where a clause is valid only if reasonable, the assumption laid down in the Act is that the clause is unreasonable rmtil the contrary is proved. 

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Make sure that the drawings, specifications and bid documents are clear and unambiguous. Do not rely on exclusion clauses in the specification or bid document. Have designs checked and use methods and equipment that comply with British Standards and Codes of Practice. 

Recent development highlighted a shift in FDA position and interpretation of the market exclusivity clause. Under the orphan designation, three interferon products, Betaseron (IFN-pib), Avonex (IFN-pia) and Rebif (IFN-pia) are currently approved for treatment of multiple sclerosis (MS). The interplay in drug safety and efficacy consideration, business strategies, and regulatory rationale permitting approval of the three drugs for MS treatment is discussed in Box 3.5. 

Market exclusivity is awarded for certain uses for a drug product, such as to treat or prevent orphan diseases. In this case, the most powerful incentive for a company to develop a product with a small target population is the Orphan Drag Act s market exclusivity clause. 

In practice, the exclusivity clause is the strongest incentive in the orphan drug law, and for some drugs it may be more important than patent protection in effecting market exclusivity36 ... 

The underlying assumption in statistical analysis is that the experimental error is not merely repeated in each measurement, otherwise there would be no gain in multiple observations. For example, when the pure chemical we use as a standard is contaminated (say, with water of crystallization), so that its purity is less than 100%, no amount of chemical calibration with that standard will show the existence of such a bias, even though all conclusions drawn from the measurements will contain consequent, determinate or systematic errors. Systematic errors act uni-directionally, so that their effects do not average out no matter how many repeat measurements are made. Statistics does not deal with systematic errors, but only with their counterparts, indeterminate or random errors. This important limitation of what statistics does, and what it does not, is often overlooked, but should be kept in mind. Unfortunately, the sum-total of all systematic errors is often larger than that of the random ones, in which case statistical error estimates can be very misleading if misinterpreted in terms of the presumed reliability of the answer. The insurance companies know it well, and use exclusion clauses for, say, preexisting illnesses, for war, or for unspecified acts of God , all of which act uni-directionally to increase the covered risk. 

Section 2 of the Act makes a change to the Unfair Contract Terms Act so that where an occupier allows someone to enter his business premises for purposes that are recreational or educational and not connected with the business itself then the occupier may rely on the use of an appropriately worded exclusion clause or notice. 

Lawson, R. G. Advertising Law in the United Kingdom, Macdonald Evans, Plymouth (1978) Lawson, R. G. Exclusion Clauses after the Unfair Contract Terms Act, Oyez, London (1983) Irving, R. Outline of the Law of Product Liability and Consumer Protection, B. Rose Publishers Ltd, Chichester (1980)... 

The responsibility of occupiers of land to those who enter the premises is to be found in fhe Occupier s Liability Acts of 1957 and 1984. The 1957 Act covers both tortious and contractual liability. The basic obligation is that the occupier owes a common duty of care to see that the premises are reasonably safe for fhe purpose for which the visitor has been permitted to enter (s. 2). It is possible, of course, for any contract that may exist between the occupier and the visitor to state a higher duty of care than that of s. 2. But under the Act it was possible for the occupier to exclude this basic duty by a suitably worded exclusion clause in a contract or by a nohce (Ashdown v. Samuel Williams Sons ). But the Unfair Contract Terms Act... 

Lawson, R.G. Exclusion clauses and unfair contract terms. Sweet and Maxwell, London (2005) Abbott, H. Product safety. Sweet and Maxwell, London (1996)... 

UNHCR s Statute limits its mandate vis-a-vis Palestiniarrs. Chapter II, para. 7(c) states that the Agency s competence shall not extend to a person Who continues to receive from other organs or agencies of the United Nations protection or assistance. ... This exclusion clause was incorporated into Article ID of the Refugee Convention, and a second, inclusion clause was added later in the Convention drafting process. Article ID reads in fiilb... 

Certain clauses (so-called exclusion clauses ) are commonly relied on to exclude or restrict the liability of a party arising through the failure to perform a contract. The Unfair Contract Terms Act 1977 limits this ability to exclude or restrict liability in certain contracts. In particular, it is never possible to exclude or restrict liability in negligence, or in relation to failure to take reasonable care in the performance of a contract, for personal injury or death by reference to any contract term. A contract sets the parameters of liability, and the rules of privity (i.e. only a party to the contract is able to sue) limit the persons who can claim for loss or damage under a contract. Where, however, a duty of care can be established between a person who has manufactured or supplied a product and the person injured then this injured party may be able to sue in tort for the negligence of the manufacturer or supplier (FaUa, 1997). 

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