Limiting Liability
Sale of Goods Act (as amended)
22.—For section 55 of the Act of 1893 there shall be substituted the section set out in the following Table:
TABLE
Exclusion of implied terms and conditions.
55.—(1) Subject to the subsequent provisions of this section, where any right, duty or liability would arise under a contract of sale of goods by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by usage if the usage is such as to bind both parties to the contract.
(2) An express condition or warranty does not negative a condition or warranty implied by this Act unless inconsistent therewith.
(3) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 12 of this Act shall be void.
(4) In the case of a contract of sale of goods, any term of that or any other contract exempting from all or any of the provisions of section 13 , 14 or 15 of this Act shall be void where the buyer deals as consumer and shall, in any other case, not be enforceable unless it is shown that it is fair and reasonable.
(5) Subsection (4) shall not prevent the court from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any of the provisions of section 13 , 14 or 15 of this Act is not a term of the contract.
(6) Any reference in this section to a term exempting from all or any of the provisions of any section of this Act is a reference to a term which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of all or any of the provisions of that section, or the exercise of a right conferred by any provision of that section, or any liability of the seller for breach of a condition or warranty implied by any provision of that section.
(7) Any reference in this section to a term of a contract includes a reference to a term which although not contained in a contract is incorporated in the contract by another term of the contract.
(8) This section is subject to section 61 (6) of this Act.
Conflict of laws.
55A.—Where the proper law of a contract of sale of goods would, apart from a term that it should be the law of some other country or a term to the like effect, be the law of Ireland or where any such contract contains a term which purports to substitute, or has the effect of substituting, provisions of the law of some other country for all or any of the provisions of sections 12 to 15 and 55 of this Act, those sections shall, notwithstanding that term but subject to section 61 (6) of this Act, apply to the contract.
International sales.
24.—In section 61 of the Act of 1893 (Savings) there shall be inserted after subsection (5) thereof the following subsection—
“(6) (a) Nothing in section 55 or 55A of this Act shall prevent the parties to a contract for the international sale of goods from negativing or varying any right, duty or liability which would otherwise arise by implication of law under sections 12 to 15 of this Act.
(b) In this subsection ‘contract for the international sale of goods’ means a contract of sale of goods made by parties whose places of business (or, if they have none, habitual residences) are in the territories of different States and in the case of which one of the following conditions is satisfied:
(i) the contract involves the sale of goods which are at the time of the conclusion of the contract in the course of carriage or will be carried from the territory of one State to the territory of another; or
(ii) the acts constituting the offer and acceptance have been effected in the territories of different States; or
(iii) delivery of the goods is to be made in the territory of a State other than that within whose territory the acts constituting the offer and the acceptance have been effected.”.
SCHEDULE
Fair and Reasonable Terms
Section 2 (3).
1. In determining for the purposes of section 13 , 31 , 40 or 46 of this Act or section 55 of the Act of 1893 (inserted by section 22 of this Act) if a term is fair and reasonable the test is that it shall be a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in contemplation of the parties when the contract was made.
2. Regard is to be had in particular to any of the following which appear to be relevant:
(a) The strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;
(b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;
(c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
(d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;
(e) whether any goods involved were manufactured, processed or adapted to the special order of the customer.
3. In this Schedule—
“contract” includes “agreement”,
“term” includes “agreement” and “provision”.