ABSTRACT
To be effective, an exemption clause must clear certain hurdles:
Incorporation
In a written contract, any exclusion clause will normally be found within the written words of the contract.
Where the contract is not in writing, the clause may be incorporated by:
express oral agreement; a notice; a previous course of dealings between the parties. For a clause to be incorporated, sufficient reasonable steps must be taken to draw it to the attention of the party whose claims the clause seeks to limit (Thornton v Shoe Lane Parking (1971)). The more draconian the clause, the greater efforts must be made to bring it to that party’s attention. These steps must be taken before the contract is made; a clause cannot be incorporated after the contract has been made (Olley v Marlborough Court (1949)).
