DEGREE EXAMINATIONS 1999

ABERYSTWYTH

FACULTY OF LAW

ASPECTS OF COMMERCIAL CONTRACTING (LAM0310)

Time allowed : TWO hours

Answer TWO questions

1. Critically consider the use, and usefulness, of 'entire agreement' clauses in contracts.

2. 'The interpretation of contracts has seen considerable evolution in recent years and much of it leads to uncertainty. At the general level, there has been a move to 'commercial construction' or interpreting contracts as if they were merely 'serious utterances ... in everyday life'. In the specific field of exemption clauses, there has been the welcome move away from strained construction in general, but accompanied by the strange notion that a justifiable distinction is to be made in the treatment of limitation and exclusion clauses. In addition, there is uncertainty as to the operation of the rule of construction in the Unfair Terms in Consumer Contracts Regulations 1994'.

   Discuss.

3. Answer BOTH (a) AND (b)

   (a)	Critically consider the approach which the courts have taken to the meaning of 'deals as consumer' under the Unfair Contract Terms Act 1977.
   AND
   (b)	'The Unfair Contract Terms Act 1977, particularly s13, requires a line to be drawn between terms which define the obligation and those which exclude liability'. Discuss.

4. Commenting on the decision to restrict the scope of the EC Directive on Unfair Terms in Consumer Contracts to terms which are not 'individually negotiated' Collins stated

   'This limitation to standard form contracts represents a victory for the consumer choice perspective, for the justification for excluding individually negotiated contracts by consumers is that the consumer will not be taken by surprise where terms have been individually negotiated, though of course individual negotiation does not rule out the possibility of an extremely unfavourable transaction.'

   Consider the extent to which the 1994 Regulations on Unfair Terms in Consumer Contracts deal with the problem of 'unfair surprise'.

5. 'The rule against penalty clauses draws an entirely artificial line in the extent to which contract terms are policed'.

   Discuss.

6. X company imports fruits, nuts and similar products into the United Kingdom and into the European Community generally from Africa and the Caribbean. X Co typically enters into contracts with exporters from those regions. It is concerned that its contracts could be impeded by various political events in the regions from which it imports. X Co requires assistance in drafting a standard form contract to be used in international transactions.

   Prepare advice for X Co dealing with the following:

   (a)	An analysis of contract law on the issue of frustration of contracts. X Co is thinking that it wants to include a choice of law clause in the standard form contract that will be of maximum benefit. Analyse the various contract regimes and provide him with options.
   (b)	Are there any other ways to control risk of frustration other than in the choice of law clause in the contract?