A Clause Purporting to Exclude or Restrict Liability for Misrepresentation

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The Answer is In the United Kingdom, clauses that aim to exclude or restrict liability for misrepresentation are indeed subject to the provisions of both the Unfair Contract Terms Act 1977 (UCTA 1977) and the Misrepresentation Act 1967.

Under the Misrepresentation Act 1967, particularly Section 3, any term that would exclude or restrict liability for misrepresentation must satisfy the test of reasonableness. This means that the clause must be fair and reasonable in the circumstances when the parties entered into the contract. If a court finds that the term is not reasonable, it will not be enforceable.

The Unfair Contract Terms Act 1977 further reinforces this position. UCTA 1977 applies to business-to-business contracts and, to a lesser extent, to business-to-consumer contracts. It stipulates that a business cannot exclude or restrict its liability for death or personal injury resulting from negligence. For other types of loss or damage, any term that aims to limit liability must pass the 'reasonableness test' as set out in Section 11 of UCTA 1977. This test takes into account factors such as the strength of the bargaining positions of the parties, whether the customer received an inducement to agree to the term, and whether the customer knew or ought reasonably to have known of the existence and extent of the term.

When it comes to misrepresentation, Section 2(2) of UCTA 1977 specifically addresses exclusion clauses for misrepresentation. It states that a person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for misrepresentation, unless the term or notice satisfies the requirement of reasonableness.

Therefore, if a clause in a contract purports to exclude or restrict liability for misrepresentation, it must be assessed under both the Misrepresentation Act 1967 and UCTA 1977 to determine its validity. If it fails the reasonableness test under either Act, it will not be enforceable, and the party making the misrepresentation may still be held liable. It is always advisable for parties to seek legal advice when drafting or agreeing to such clauses to ensure that they are compliant with the relevant legislation.

A Clause Purporting to Exclude or Restrict Liability for Misrepresentation

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