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Exclusion clause – all liability

The CA recently considered a clause which sought to exclude all liability. Was it within the reasonableness test under UCTA 1977?
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Misrepresentation – entire agreement?

If there is an ‘entire agreement’ clause, will that prevent any subsequent claim for misrepresentation?
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Competition – internet bans?

It is very difficult for a manufacturer or supplier to prohibit its retailers from making online sales. 
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Procurement – sub-contractors?

In April 2018, the government announced a new policy requiring main contractors and suppliers to advertise sub-contract opportunities (under their head contract with central government). 

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Drafting – ambiguity?

If a contract is clear and unambiguous, the court must apply it. Hence the importance of distinguishing between ambiguous and unambiguous wording.
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Exclusion clauses – ‘reasonableness’

The rules on exclusion clauses in UCT 1977 apply to both business and consumer contracts. In essence, any exclusion or restriction of liability for loss will be subject to a ‘reasonableness’ test (unless it relates to personal injury, in which case it will be void).

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Web – photo re-posting

The ECJ has held that the reposting of a photo is likely to require the authorisation of the copyright owner – even if it is already published on the web.

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Force majeure – sole cause

If force majeure arises (eg war) then contractual obligations come to an end (subject to the obligation to use ‘reasonable endeavours’ to avoid the force majeure incident).

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Insolvency – assignment of claim

Administrators, trustees in bankruptcy, and liquidators can assign a claim or course of action belonging to the insolvent party. But, in any assignment there is a potential risk of a non-party costs order being made if the claim is ultimately unsuccessful. Ideally, therefore, an indemnity will be obtained from the person the claim is being assigned to.

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CGT – entrepreneurs relief

An important CGT relief is provided via entrepreneurs relief – but that is lost if the tax-payer’s holding falls below 5%.

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