### Control of Exemption Clauses Ordinance 《管制免責條款條例》

4. “Dealing as consumer”
(1) A party to a contract “deals as consumer” in relation to another party if—
(a) he neither makes the contract in the course of a business nor holds himself out as doing so;
(b) the other party does make the contract in the course of a business; and
(c) in the case of a contract governed by the law of sale of goods or by section 12, the goods passing under or in pursuance of the contract are of a type ordinarily supplied for private use or consumption.
(2) Notwithstanding subsection (1), on a sale by auction or by competitive tender the buyer is not in any circumstances to be regarded as dealing as consumer.
(3) It is for the person claiming that a party does not deal as consumer to prove that he does not.
[cf. 1977 c. 50 s. 12 U.K.]

5. Varieties of exemption clause
(1) To the extent that this Ordinance prevents the exclusion or restriction of any liability it also prevents—
(a) making the liability or its enforcement subject to restrictive or onerous conditions;
(b) excluding or restricting any right or remedy in respect of the liability, or subjecting a person to any prejudice in consequence of his pursuing any such right or remedy;
(c) excluding or restricting rules of evidence or procedure,
and (to that extent) sections 7, 10, 11 and 12 also prevent excluding or restricting liability by reference to terms and notices which exclude or restrict the relevant obligation or duty.
(2) An agreement in writing to submit present or future differences to arbitration is not to be treated under this Ordinance as excluding or restricting any liability.
[cf. 1977 c. 50 s. 13 U.K.]

6. Power to amend Schedules 1 and 2
The Legislative Council may by resolution amend Schedules 1 and 2.

7. Negligence liability
(1) 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 death or personal injury resulting from negligence.
(2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.
(3) Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.
[cf. 1977 c. 50 s. 2 U.K.]

### Control of Exemption Clauses Ordinance 《管制免責條款條例》

8. Liability arising in contract
(1) This section applies as between contracting parties where one of them deals as consumer or on the other’s written standard terms of business.
(2) As against that party, the other cannot by reference to any contract term—
(a) when himself in breach of contract, exclude or restrict any liability of his in respect of the breach; or
(b) claim to be entitled—
(i) to render a contractual performance substantially different from that which was reasonably expected of him; or
(ii) in respect of the whole or any part of his contractual obligation, to render no performance at all,
except in so far as (in any of the cases mentioned above in this subsection) the contract term satisfies the requirement of reasonableness.
[cf. 1977 c. 50 s. 3 U.K.]

9. Unreasonable indemnity clauses
(1) A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.
(2) This section applies whether the liability in question—
(a) is directly that of the person to be indemnified or is incurred by him vicariously;
(b) is to the person dealing as consumer or to someone else.
[cf. 1977 c. 50 s. 4 U.K.]

10. “Guarantee” of consumer goods
(1) In the case of goods of a type ordinarily supplied for private use or consumption, where loss or damage—
(a) arises from the goods proving defective while in consumer use; and
(b) results from the negligence of a person concerned in the manufacture or distribution of the goods,
liability for the loss or damage cannot be excluded or restricted by reference to any contract term or notice contained in or operating by reference to a guarantee of the goods.
(2) For these purposes—
(a) goods are to be regarded as “in consumer use” when a person is using them, or has them in his possession for use, otherwise than exclusively for the purposes of a business; and
(b) anything in writing is a guarantee if it contains or purports to contain some promise or assurance (however worded or presented) that defects will be made good by complete or partial replacement, or by repair, monetary compensation or otherwise.
(3) This section does not apply as between the parties to a contract under or in pursuance of which possession or ownership of the goods passed.
[cf. 1977 c. 50 s. 5 U.K.]

### Control of Exemption Clauses Ordinance 《管制免責條款條例》

11. Seller’s liability
(1) Liability for breach of the obligations arising from section 14 of the Sale of Goods Ordinance (Cap. 26) (seller’s implied undertakings as to title, etc.) cannot be excluded or restricted by reference to any contract term.
(2) As against a person dealing as consumer, liability for breach of the obligations arising from section 15, 16 or 17 of the Sale of Goods Ordinance (Cap. 26) (seller’s implied undertakings as to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose) cannot be excluded or restricted by reference to any contract term.
(3) As against a person dealing otherwise than as consumer, the liability specified in subsection (2) can be excluded or restricted by reference to a contract term, but only in so far as the term satisfies the requirement of reasonableness.
(4) The liabilities referred to in this section are not only the business liabilities defined by section 2(2), but include those arising under any contract of sale of goods.
[cf. 1977 c. 50 s. 6 U.K.]

12. Miscellaneous contracts under which goods pass
(1) Where the possession or ownership of goods passes under or in pursuance of a contract not governed by the law of sale of goods, subsection (2) to (4) apply in relation to the effect (if any) that the court or arbitrator is to give to contract terms excluding or restricting liability for breach of obligation arising by implication of law from the nature of the contract.
(2) As against a person dealing as consumer, liability in respect of the goods’ correspondence with description or sample, or their quality or fitness for any particular purpose, cannot be excluded or restricted by reference to any such term.
(3) As against a person dealing otherwise than as consumer, that liability can be excluded or restricted by reference to such a term, but only in so far as the term satisfies the requirement of reasonableness.
(4) Liability in respect of—
(a) the right to transfer ownership of the goods, or give possession; or
(b) the assurance of quiet possession to a person taking goods in pursuance of the contract,
cannot be excluded or restricted by reference to any such term except in so far as the term satisfies the requirement of reasonableness.
[cf. 1977 c. 50 s. 7 U.K.]