The Future of the Unfair Contract Terms Act 1977

Abstract

A significant and relatively recent academic contribution to the problem of exclusion clauses has been to highlight the relevance of contractual terms to the constructional problems that arise in interpreting individual exclusion clauses. The conventional view, that an exemption clause operates as a shield to a claim for damages or repudiation, has been criticised as a failure to recognise this as simply one device available to the draftsman to enable him to delimit the extent of the obligations undertaken by the agreement: a negative statement of positive obligation. The most persistent advocate of the exclusion clause as a method of modifying primary contractual duties is Professor Coote. Judicial response has, until recently, been disappointing, although there has been more enthusiasm in Australia.