Even if a contradictory statement turns out to be untrue, and therefore a
misrepresentation, it can have the same effect on an exemption clause as a
true statement.
Legislation
The final step taken by the court is to ask the question: Is there any legislation
which affects this clause? The relevant legislation is the Unfair Contract
Terms Act 1977 and the Unfair Terms in Consumer Contract Regulations
- This legislation has radically changed the idea of freedom to contract,
and has given much needed protection to the consumer.
The Unfair Contract Terms Act 1977
This was a major landmark in fairness to consumers, and had the effect of
relieving the court of forming principles as each different case is presented to
court. The act is largely built upon the principles already established, and states
the law clearly, leaving less room for uncertainty, at least as far as exemption
from liability for death or personal injury is concerned. As most of the provisions
in the Unfair Contract Terms Act 1977 apply to consumer transactions rather
than agreements between businesses, two important concepts are:
- Business liability – stated in section 1(3) as ‘duties arising (a) from
things done or to be done in the course of business ... or (b) from the
occupation of premises used for the business purposes of the occupier’.
122 Contract law
Can you think of any other circumstances where an oral statement may
override what is within a written contract?Curtis v Chemical Cleaning and Dyeing Co (1951)
The plaintiff took a wedding dress to be cleaned and was asked to sign
a document. On enquiry she was told that it meant that the cleaners
would not be liable for damage to sequins and beads. In fact the
document contained a clause exempting the cleaners from liability ‘for
any damage howsoever arising’. The dress was stained by the cleaners
and they tried to rely on their exemption clause. It was held that the
misrepresentation had overridden the exemption clause, and the
cleaners were liable to the plaintiff for the damage.Does this place an unfair burden on a sales assistant? What could the
assistant do to avoid this? Who would be liable if an untrue statement is
made by an assistant?