国外商学院课程Lecture 7.ppt

3)Any prior knowledge of the term that the customer should reasonably have been aware of from previous contractual dealings 4) Special requirements :- If goods were made/adapted to meet the customers requirements , an exemption may be binding The court may also consider the appropriateness of taking out insurance and whether the parties should have undertaken independent advise SMITH V ERIC S. BUSH[1989]2 WLR 790 :- Smith brought a house in reliance on a surveyors report which contained an exemption clause which stated that it was issued without any guarantee of accuracy or acceptance of legal liability. The surveyor negligently overlooked a defect to the Chimney which later collapsed resulting in a large bill for structural repairs HELD:- the exemption clause was unreasonable and not effective as :- 1) the parties did not have equal bargaining power :- the claimant could not be expected to know whether the report was correct or not 2) the financial resources of the claimant :- Smith was a first time buyer of a modest property and it was not reasonable to expect her to get a second opinion 3) the surveyor was negligent :- any reasonably competent surveyor ought to have spotted the defect 4) insurance:- This was available at a modest cost to the surveyor but the purchaser was unlikely to have such protection 3) Statutory requirements –  UTCCR The UNFAIR TERMS IN CONSUMER CONTRACT REGULATIONS 1999 (UTCCR) These regulations protect CONSUMERS who have entered a contract containing a non – negotiable term imposed by the seller or supplier which is deemed to be unfair i.e. fails to fulfil the requirement of good faith causing a significant imbalance in the parties contractual relationship which is prejudicial to the consumers interests Such a term is voidable by the consumer i.e. they are not bound by it unless they choose to be bu