24
CAP. 71]
Control of Exemption Clauses
[1989 Ed.
2.
(b) any contract so far as it relates to the creation or transfer of an interest in land, or to the termination of such an interest, whether by extinction, merger, surrender, forfeiture or otherwise;
(c) any contract so far as it relates to the creation or transfer of a right or interest in any patent, trade mark, copyright, registered design, technical or commercial information or other intellectual property, or relates to the termination of any such right or interest;
(d) any contract so far as it relates---
(i) to the formation or dissolution of a company (which means any body corporate or unincorporated association and includes a partnership); or
(ii) to its constitution or the rights or obligations of its corporators or members;
(e) any contract so far as it relates to the creation or transfer of securities or of any right or interest in securities.
Section 7(1) applies to-
(a) any contract of marine salvage or towage;
(b) any charterparty of a ship or hovercraft; and
(c) any contract for the carriage of goods by ship or hovercraft,
but sections 7(2) and (3), 8, 9 and 12 do not apply to any such contract except in favour of a person dealing as consumer.
3.
Where goods are carried by ship or hovercraft in pursuance of a contract which either-
(a) specifies that as the means of carriage over part of the journey to be covered; or (b) makes no provision as to the means of carriage and does not exclude that means, then sections 7(2), 8 and 9 do not, except in favour of a person dealing as consumer, apply to the contract as it operates in relation to the carriage of the goods by that means.
4. Section 7(1) and (2) does not apply to a contract of employment, except in favour of the employee.
[cf. 1977 c. 50 Sch. 1 U.K.]
SCHEDULE 2
“GUIDELINES” FOR APPLICATION OF REASONABLENESS TEST
[ss. 3(2) & 6]
The matters to which the court or arbitrator shall have regard in particular for the purposes of sections 11(3) and 12(3) and (4) are any of the following which appear to be relevant-
(a) the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer's requirements could have been met;
(b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;
(c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
(d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;
(e) whether the goods were manufactured, processed or adapted to the special order of the customer.
[cf. 1977 c. 50 Sch. 2 U.K.]