Civil Litigation · glossary
The test in section 11 of the 1977 Act: a clause must have been fair and reasonable to include when the contract was made. The party relying on the clause must prove it passes, so here Corledge must. For a cap, the court also weighs resources and insurance. Reply and Defence to Counterclaim, paragraph 4 · Chapter 5 · see Cap
Explained in Chapter 5, The Defence, the Counterclaim and the Liability Cap, of Civil Litigation.
The main page for this term is Reasonableness test, in English Law Basics.
So each clause must meet the requirement of reasonableness in section 11. It must have been a fair and reasonable term to include, judged when the contract was made. The party relying on a clause must prove it passes, so here the burden is on Corledge. For a cap, the court also looks at the supplier’s resources and whether it could have insured.Read Chapter 5, The Defence, the Counterclaim and the Liability Cap →
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