Exclusion clauses
Exclusion clauses

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Exclusion clauses

3.2 The contra proferentem rule

This rule states that if there is any doubt about the meaning or scope of an exclusion clause, the ambiguity should be resolved against the party seeking to rely on the exclusion clause. It is the other party who is given the benefit of the doubt.

An extreme example of this is given in Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71.

Box 5 Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71

The defendant agreed to repair Mr Hollier’s motor car. While at the defendant’s garage, the car was damaged in a fire caused by the defendant’s negligence. The defendant sought to rely on a clause stating, ‘The company is not responsible for damage caused by fire to customers’ cars on the premises’. The Court of Appeal held that the clause was not incorporated into the contract but, in any event, it was not clear enough to exclude the defendant’s liability. Lord Justice Salmon (at p. 81) stated:

The ordinary man would I think say to himself: ‘Well, what they are telling me is that if there is a fire due to any cause other than their own negligence they are not responsible for it.’ To my mind, if the defendants were seeking to exclude their responsibility for a fire caused by their own negligence, they ought to have done so in far plainer language than the language here used.

More recently, the courts have emphasised the need to avoid what could be termed as ‘illegitimate hostile construction’ rather than a ‘legitimate strict construction’ in cases such as George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803 (Furmston, 2017, Chapter 6). Legislation in this area has arguably lessened the need for such judicial interventions (see Section 4 onwards).

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Figure 7 A different type of hostile construction!
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