JUDICIAL INTERVENTION : Perhaps the earliest, and certainly the most widely used judicial techniques to curb the excesses of the unfettered use of exemption clauses were the rules on incorporation of terms referred to in Chapter 2. Although ostensibly neutral in scope, their use in an exemption clause context was often particularly searching. However, as cases such as L’Estrange v Graucob and Thompson v

doi:10.4324/9781843141518-180

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ABSTRACT

Perhaps the earliest, and certainly the most widely used judicial techniques to curb the excesses of the unfettered use of exemption clauses were the rules on incorporation of terms referred to in Chapter 2. Although ostensibly neutral in scope, their use in an exemption clause context was often particularly searching. However, as cases such as L’Estrange v Graucob11 and Thompson v London Midland & Scottish Railway12 illustrate, there were serious limits on how far the courts allowed themselves to go in curbing the use of exemption clauses by scrutinising the forms or procedures of their incorporation.