3.7.3 No Exemption from Liability for Pre-Contract Representations

Irish Life inserted a condition in their Policy (see Section 3.6) whereby they exempted themselves from any liability resulting from the pre-contractual representations made by either Irish Life themselves or by their tied agent, First National.


This Exemption Clause is denied contractual effect for the following reasons:

(a)

As a limiting clause present in the contract conditions, it should have been brought to our notice prior to or at the time of contract. It was not.


(See Section 2.2.2: The Exemption Clause.)
(b)

On the basis of the Contract being a Standard Form Contract, such an onerous or unusual condition should have been fairly brought to our attention AND explained prior to or at the time of contract. It was not.


(See Section 2.2.3: The Standard Form of Contract.)
(c)

Such an exemption clause is unreasonable, and it would certainly be unreasonable to apply it in the circumstances of an Endowment Mortgage Contract.


(See Section 2.2.4: Other Limitations at Common Law to the Operation of Exemption Clauses, (c) Reasonableness.)
(d)

Such an exemption clause is not enforceable, by virtue of Section 3 of the U.K. Misrepresentation Act 1967 and Section 46(1) of the Irish Sale of Goods and Supply of Services Act 1980, because it is not fair and reasonable.


(See Section 2.3.5: Statutory Misrepresentation.)

 

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Copyright © 2005 - 2013, 2014 John O'Meara. All Rights Reserved.