The rules that decide whether a clause excluding or limiting liability actually works — incorporation, construction, and the statutory controls of UCTA 1977 and the Consumer Rights Act 2015.
A clause that looked watertight when drafted can fail at any of three hurdles, and each hurdle has its own body of rules. This chapter begins with incorporation — signature, reasonable notice and previous course of dealing — and the heightened notice demanded by onerous or unusual terms. It then moves to construction, including contra proferentem and the approach to clauses purporting to cover negligence, before turning to the statutory controls: UCTA 1977 for business contracts, with its reasonableness test and Schedule 2 factors, and the Consumer Rights Act 2015 with its fairness regime for consumer terms. It closes with the treatment of clauses excluding liability for misrepresentation and the limited scope for severing the invalid parts of a clause.
