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Exclusion
and Limitation of Liability Clauses
Irish
consumer legislation contains specific provisions in relation to
exclusion and limitation of liability, which are too detailed to
discuss here. However, two significant pieces of legislation deal
with consumer contract provisions in general terms, namely the Sale
of Goods and Supply of Services Act, 1980 (the Act) and the European
Community (Unfair Terms in Consumer Contracts) Regulations 1995
(the Regulations).
The Act implies into consumer contracts for the sale of goods undertakings
as to title and description, as well as conditions as to quality
and fitness. This Act also implies terms into service contracts,
including undertakings that the supplier has the necessary skill
to render the service and that he will provide the service with
due skill, care, and diligence. The implied terms in a contract
for sale of goods cannot be excluded or varied where the buyer deals
as a consumer.
The
implied terms in a contract for services, where the buyer is dealing
as a consumer, may be excluded or varied only where it is fair and
reasonable to do so and where this has been specifically brought
to the consumer's attention.
The
Regulations seek to further protect the consumer, whom the law regards
as being generally in a weaker bargaining position. They specifically
outlaw certain terms. In essence, if a term of a consumer contract
is found to be unfair and it has not been individually negotiated
with consumer, it will not be binding on the consumer.
The Regulations deal in detail with what is fair and reasonable.
The concept of fairness includes a requirement of good faith. The
Regulations set out indicative factors in relation to this good
faith test. They also set out a non-exhaustive list of terms that
may be regarded as unfair.
For further information or general enquiries contact: -
Thomas Simpson
Email: tsimpson@kilroys.ie
or
Kevin O'Gara
E-mail: kogara@kilroys.ie
Telephone: +3531-439 5600
Fax: +3531-439 5601/439 5602
© Kilroys Solicitors 2002 - 2003
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