chapter  18
34 Pages

EXCLUSIONS AND DISCLAIMERS

Prima facie, at common law an exclusion clause may become incorporated in a contract in either of the following ways:15

1. Incorporation by notice. The incorporation of a clause excluding liability into a contract between two parties is a matter of intention: such an exclusion will become part of a contract so as to bind one of the parties (irrespective of whether he listened to, or read it) provided that, at the time of contracting,16 he realised that the other party intended it to form part of the contract between them.17 Alternatively, in the absence of actual knowledge, a party may be

8 For disclaimers of strict criminal liability, see para 4.09. 9 E.g. Hurley v Dyke [1979] RTR 265, HL. Subject to s 2 of UCTA: as to which, see para 18.17.