And this is exactly what happened in Axa Sun Life Services plc v. Campbell Martin Ltd et al. (2011). The Court of Appeal concluded that the entire contractual term was not effective in excluding the very elements for which it was to be designed. 2. Misrepresentation – A full contractual clause does not exclude liability for misrepresentation. Instead, the parties can and often exclude liability for misrepresentation2 by a statement of confidence independent of the entire contractual clause or a clause that the parties have not invoked on another assurance or statement not set out in the agreement. Here is an example of a non-trust clause: The judge stated that the purpose of these types of clauses is as follows: the court`s analysis of the application of section 3 and the fact that the contractual waiver is not an answer to the question of whether it applies is of particular interest. As the Court has recognized, the fact that the clause resulted in forfeiture of contract would preclude the application of Article 3 would mean that, subject to other applicable laws, the Parties would not be able to make such fraudulent misrepresentation with impunity. Those who drafted the Misrepresentation Act did not intend for the Parties to circumvent Article 3 by formulating such intelligent language.
Adding his comments to those of Lewison LJ, Leggatt LJ was prepared to go further, stating: “I would say that if one party invokes the principle of contractual forfeiture to argue that a contractual term prevents the other party from asserting a fact necessary to establish liability for a pre-contractual misrepresentation, the term falls under section 3 of the Misrepresentation Act 1967. Such a period is therefore effective unless it satisfies the requirement of adequacy referred to in Article 11 of the UCTA. The parties must therefore be aware that when drafting a clause that would lead to contractual confiscation, it will only be applied if it meets the UCTA adequacy criterion. Problems often arise when disagreements arise over the meaning and effect of such contracts or agreements, and when a party attempts to look outside the terms of the contract itself to support a claim, defense or argument. The long series of cases on entire contractual clauses shows that whole contractual clauses: whole contractual clauses are sometimes referred to as “whole agreements”. As a result, a standard approach to the wording of these clauses has emerged, in which Parties use language set out in their model provisions. . . .