...Exclusion And Limiting Clauses INTRODUCTION A clause may be inserted into a contract which aims to exclude or limit one party's liability for breach of contract or negligence. However, the party may only rely on such a clause if (a) it has been incorporated into the contract, and if, (b) as a matter of interpretation, it extends to the loss in question. Its validity will then be tested under (c) the Unfair Contract Terms Act 1977 and (d) the Unfair Terms in Consumer Contracts Regulations 1999. A. INCORPORATION The person wishing to rely on the exclusion clause must show that it formed part of the contract. An exclusion clause can be incorporated in the contract by signature, by notice, or by a course of dealing. 1. SIGNED DOCUMENTS If the plaintiff signs a document having contractual effect containing an exclusion clause, it will automatically form part of the contract, and he is bound by its terms. This is so even if he has not read the document and regardless of whether he understands it or not. See: Struggling with your Law studies? We can help! Have a look at our huge range of products and services that may be useful when planning your next law assignment or essay. Law Essay Writing Service Essay Marking Service Our Guarantees Our quality promise Freelance Writing Jobs Place an Order L'Estrange v Graucob [1934] 2 KB 394. However, even a signed document can be rendered wholly or partly ineffective if the other party has made a misrepresentation as...
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...above statement. After collecting the car after its service, Amy was driving home when she suddenly lost control of the car and crashed into a tree. As a consequence, Amy was severely injured and was unable to work for three months and the car was completely destroyed. It subsequently emerged that that the accident had been caused by a mechanic at Brakes Ltd who had failed to properly reconnect the car's steering mechanism. Brakes Ltd have accepted that their employee was negligent but deny any liability, relying on the exclusion clause. Required Task: Advise Cathy whether the exclusion clause was incorporated into her contract with Brakes Ltd. Your analysis should clearly relate to thelegal controls that courts would use in assessing the validity of an exclusion clause. Refer to relevant cases and legislations (AC: 1.3,2.2, & 2.3) Exclusion clauses An exclusion clause, or exemption clause, can be defined as 'a clause in a contract which purports to exclude liability altogether or to restrict it by limiting damages or by imposing other onerous conditions.' As a general...
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...HIGHER NATIONAL DIPLOMA/CERTIFICATE IN BUSINESS AND MANAGEMENT Module: Law for Business The assignment covers the following learning outcomes: Outcome 1: Discuss the principles of law relating to the formation and discharge of commercial and consumer contracts * Identify the requirements for a valid contract * Explain the difference between an offer and an invitation to treat Outcome 2: Explain the significance of specialist terms contained in a specimen contract * Assess the validity of contractual clauses contained in a specimen contract * Identify the key Statutory provision for the use of exclusion clauses Outcome 3: * Identify the source and content of key Statutory provisions relating to consumer protection * Assess the effectiveness of specific provisions in relevant Acts * Apply relevant Legislation to the case study, and present findings 1. To: Devindra Subject: Contract Information CC: None Greetings, I’m writing to advise you regarding any legaly bindiing contract made from the advertisemnt of the caravan. A Contract is a transaction which two or more people voluntarily enter together for the transfer of wealth, assets or services. It can be written or it can be oral. Furthermore for a contract to be valid there must be an offer for the proposed item. There are two types of offers, a firm offer which is the indication that someone is seriously prepared to contract to someone such as...
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...risk and Bash Ltd accept no liability whatsoever for any damage or injury sustained by either those using this facility or their vehicles or property, no matter how caused.’ Andy was aware of the sign, but had never paid much attention to it. However, one day he returned to his car to find that it had been badly damaged by a towing vehicle driven by an employee of Bash Ltd. Whilst on his way to the car park office to complain he was hit by the same towing vehicle, which was clearly being driven dangerously by one of Bash Ltd’s employees. As a result, not only was his car severely damaged, but he suffered a broken leg and was off work for eight weeks. Bash Ltd has accepted that its employee was negligent on both counts but denies any liability, relying on the exclusion clause Required: On the understanding that the clause excluding Bash Ltd’s liability was incorporated into its contract with Andy, advise Andy whether there is any action he can take against Bash Ltd. Given that the question scenario clearly states that the exclusion clause was incorporated into the contract between Andy and Bash Ltd (and there can be no doubt that it is), it is only necessary to consider the effect of the clause. On the basis of the clear wording, it would appear that the wording of the exclusion clause is sufficiently clear and specific to cover Bash Ltd’s negligence. As a consequence, it only remains to consider how the legislation governing exclusion clauses would be likely to deal with...
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...EXEMPTION CLAUSES CONTINUED A contracting party seeking to rely on an exemption clause to avoid or limit liability must show that the act complained of comes strictly within the terms of the clause. If it is in any way ambiguous then it will be interpreted against the party attempting to enforce it this is referred to as the contra proferentem rule. Andrews Bros. v Singer [1934] 1 KB 17 There was a contract to purchase new Singer Cars; the contract contained a clause excluding “guarantees or warranties, statutory or otherwise”. One of the cars delivered to the dealer was a used car. The plaintiff sued Singer (defendants); they tried to rely on the exemption clause. Held – The stipulation as to the suitability of the car was a condition, not a guarantee or a warranty, and as such was not covered by the exemption clause. The term “new singer cars” was an express term. An exclusion of liability in respect of implied terms could not cover liability under the express term. This is particularly so if there is any ambiguity in the term White v John Warwick & Co Ltd [1953] 2 All ER 1021 The plaintiff hired a bicycle from the defendant under a written agreement which included a provision that "nothing in this agreement shall render the owners liable for any personal injuries". The plaintiff was injured when the saddle tilted forward, Held - The Court of Appeal found the defendant liable in negligence. The exclusion clause was sufficient to exclude liability for supplying a defective...
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...EXEMPTION CLAUSES CONTINUED A contracting party seeking to rely on an exemption clause to avoid or limit liability must show that the act complained of comes strictly within the terms of the clause. If it is in any way ambiguous then it will be interpreted against the party attempting to enforce it this is referred to as the contra proferentem rule. Andrews Bros. v Singer [1934] 1 KB 17 There was a contract to purchase new Singer Cars; the contract contained a clause excluding “guarantees or warranties, statutory or otherwise”. One of the cars delivered to the dealer was a used car. The plaintiff sued Singer (defendants); they tried to rely on the exemption clause. Held – The stipulation as to the suitability of the car was a condition, not a guarantee or a warranty, and as such was not covered by the exemption clause. The term “new singer cars” was an express term. An exclusion of liability in respect of implied terms could not cover liability under the express term. This is particularly so if there is any ambiguity in the term White v John Warwick & Co Ltd [1953] 2 All ER 1021 The plaintiff hired a bicycle from the defendant under a written agreement which included a provision that "nothing in this agreement shall render the owners liable for any personal injuries". The plaintiff was injured when the saddle tilted forward, Held - The Court of Appeal found the defendant liable in negligence. The exclusion clause was sufficient to exclude liability for supplying...
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...LAW204 - CONTRACTS Week 5 – Express Terms ___________ ** N.B. The main cases covered in lectures, containing MAIN RULES are highlighted in YELLOW! READINGS/LECTURE CHAPTER 10 – EXPRESS TERMS Introduction – Contents of a Contract? * Express Terms: contain contractual promise and terms that are capable of being Incorporation by pre-contractual statement: * Courts look at what the parties said * Have these statements become express terms? Statements the court acknowledges: * Irrelevant statements and Puffs: * Sales talk, exaggerations e.g. best on the market! * No reasonable person is supposed to take it seriously * No affect on contract, not actionable * Representations: * Factual statements which are intended to and do induce the representee to enter the contract not made to be binding * Merely representational/description with no promissory intent – truth not guaranteed by their marker * LACK ANY CONTRACTUAL FORCE * False representations may constitute a misrepresentation innocent party may be able to rescind the contract, or attract remedies under statue (misleading and deceptive conduct) * Legal action is limited to actions in negligence or fraud (deliberately lied to you) or misleading or deceptive conduct under s18 of Australian Consumer Law * Terms: * Contractual undertakings intended to be binding – not merely representational ...
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...Course Title: ASPECTS OF CONTRACT AND NEGLIGENCE FOR BUSINESS Course Code: QCF/L5/0215 Assignment Number: 01 LCB Student number: LCB/2867 Student Name: DK. SITI NURUL HAFIZZAH BINTI PG. ALI HASAN Contents Task 1 a)3-4 1 b)4-5 1 c)5-6 Task 2 a)7 2 b)7-8 2 c)8 Task 3 a)9 3 b) 10 Task 4 a)11 4 b) 12 Task 5 a)13 5 b) 14 Task 6 a)15-16 6 b) 16-17 Reference List18 Task 1 TASK 1-1.1 a) For one to form a valid contract the party must fulfill the essential elements required for the function of a valid contract and one of them is to have the intention to create legal relations. It is simply defined as an intention to enter a legally binding agreement or contract. Without the intention, the contract may only become a mere promise because there is no legal binding between the contracting parties and the contract can be assumed as not legal. It is not sufficient for only one party to have the intention but not the other as the presence of mutual understandings and intentions between the contracting parties are needed to legally binding a contract. However, there is no intention to create legal relations when it comes to cases that involve with social, domestic and family arrangements. Balfour v Balfour 1919: “The defendant (the husband) promised to pay his wife £30 a month as health maintenance when she could not return to Ceylon with him under the doctor’s advice. When their marriage ended in divorce...
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...RELATION……………………..7 CASE STUDY 4: contractual terms……………………………………………...……7-8 CASE STUDY 5: exclusion clause……………………………………………………8-9 CASE STUDY 6: Tort of negligence …...……………………………………………9-11 CASE STUDY 7: vicarious liability……………………………………………………12. REFERENCE LIST………………………………………………………………………..13 EXECUTIVE SUMMARY CASE STUDY 1: OFFER AND ACCEPTANCE This case involves term such as: offer, acceptance offer, difference between offer and treat, invitation of treat and acceptance of an offer by post. CASE STUDY 2: CONSIDERATION This case of study involves terms such as: part payment, principle of promissory estoppel Pinnels case (1602) and foakes beer (1884). CASE STUDY 3: INTENTION TO CREATE LEGAL RELATION This case of study involves terms such as: intention to create legal relation, domestic contract, social contract and commercial contracts. CASE STUDY 4: contractual terms This case of study involves terms such as: meaning of contractual terms, representation, types of contractual terms. CASE STUDY 5: exclusion clause This case of study involves terms such as: meaning of exclusion clause and legal rules governing the legality of the exclusion clause. CASE STUDY 6: Tort of negligence This case of study involves terms such as: Hedley Byne and Co ltd Heller and Partners ltd (1946), caparo industries v dickman, negligence and special relationship. CASE STUDY 7: vicarious liability This case of study involves terms such as:...
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...Task 1 “A contract may be defined as an agreement which legally binds the parties”. There are some key elements which are essential to form a valid and enforceable contract by the law. 1. Agreement First of all, a contract must contain an agreement. An agreement is made of an offer and the acceptance of that offer. An offer is defined as “a definite promise to be bound on specific terms”. The person who makes an offer is the offeror and the person to whom the offer is made is referred as the offeree. In other words, the relationship between the offeror and the offeree is determined through the communication made between them which indicate some specific terms. The offeror is prepared to be bound by these terms if the offeree accepts them.An offer can be express or implied from conduct (see case Textile Holdings Ltd v Spencer plc 1897).It is necessary to differ between an offer and an invitation to treat because an invitation to treat is only some kinds of a preliminary stage in forming an agreement where one party invites the other to make an offer. Usually, an offer need to be definite (although can be made to the public at large – see case Carlill v Carbolic Smoke Ball Co 1893) and addressed to a specific party while an invitation to treat can be indefinite. “Acceptance is the unqualified agreement to the terms of the offer”. In other words, once the offeree has accepted an offer then he is unconditionally agreed to the precise terms of that offer. The acceptance can...
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...Terms and Exemption Clauses 1) Parol Evidence 2) Terms and Representation 3) Implied Terms a) In Fact b) In Law c) In Statute d) By Custom 4) Classification of Terms 5) Exemption Clauses: Incorporation a) By Signature b) By Notice c) By Previous Course of Dealing 6) Construction a) Contra Proferentem Rule b) Rule in Cases of Negligence Liability c) Doctrine of Fundamental Breach 7) Unfair Contract Terms Act (UCTA) a) Liability in Negligence b) Liability in Contract c) Sale and Supply of Goods d) Test of Reasonableness Parol Evidence Rule a) No extrinsic evidence (such as any oral agreement or statement) is admissible to add to, vary or contradict a written instrument or contract. b) Exceptions c) Contract was the result of mistake, a lack of consideration, or of misrepresentation d) Mistake in the written contract i) Joscelyne v Nissen (1970) e) Contract has not yet come into existence or that it is no longer in operation i) Maybe due to the occurrence or non-occurrence of a certain event by a certain date, which has been accepted verbally ii) Pym v Campbell (1856) iii) Obligation to buy shares in an invention was conditional upon a 3rd party approving the invention, of which the approval had not been received. f) Where extrinsic evidence demonstrates that a particular custom of trade must be implied to, and therefore become a part of, the written agreement...
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...1a) What is the purpose of an exclusion clause in an agreement? An exclusion clause is basically a section in the contract that limits or excludes or appears to limit or exclude any form of liability for breach of contract. Many contracting parties will use this technique to avoid liability for breach of contract. An exclusion clause may go as far as to completely exclude any liability or may just limit the amount or form of liability to certain amount. Exclusion clauses most commonly appear in standard form contracts. In contracts were the terms are already set, and they form a kind of 'take it or leave it' contract, where there is no negotiation of the terms. Whereas in the contract above is to put Petaling Jaya Forwarding Sdn. Bhd. Fully and solely liable should any damage or loss happen to the vessel “Hang Tuah” thus making it not seaworthy. If the said condition happen during transportation or during handling by Petaling Jaya Forwarding Sdn. Bhd., The owners “ West Port Shipyard Sdn Bhd” will be claiming for it from Petaling Jaya Forwarding. 1b) Is it necessary that an exclusion clause must be one of the terms of an agreement In these events, an exclusions clause is a must. The exclusion clause is used to protect the owner of the vessel should any loss or damage to the vessel occurred during handling by Petaling Forwarding. Petaling Forwarding will have to pay or bear the cost for making good of the vessel. The existence of...
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...Air Asia, an airline company is entering into a contract with Delta Cargo. You being the legal advisor of Air Asia have to explain to your company the following: 1. Describe to them specific contract terms with reference to their importance and impact if these terms are broken. 2. Explain the application and analyze the law on standard from contracts. It is a pre-prepared contract where all the terms have already set. In standard form contract each of the party will have different duties such as a recipient; they have little or no prior negotiation. On the other hand the provider of the contract has their own standard terms and conditions. The standard form contract can usually be found in a contract between employees and the company. The terms in standard form can be in three types which are express term, implied term and innominate term. Firstly an express term is a clear stipulation in the contract (they are terms of the contract and may choose to do so orally, or in writing, or in a combination of these methods.) which the parties intend should be binding upon them. Traditionally, the common law had divided terms into two categories: conditions and warranties. Condition is a term which is vital to the contract, going to the root of the contract. While warranty is a less important term, it does not got to the root of the contract but is subsidiary to the main purpose of the agreement. A breach of condition will entitle the injured party to repudiate the contract...
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...Exemption clause looks to limit the liabilities that may emerge from the legal relation. For instance an exception provision can be incorporated as "Party A will just acknowledge risk up to the measure of 60 dollars." Exemption clause is by and large incorporated into a contract to protect the party drafting the agreement from being sued by the other party for damages, negligence or different misfortunes. Exemption clause can be utilized by the party to distribute danger between them. Exemption clauses can be part into avoidance statement and constraint proviso. Exclusion clauses excludes liability completely for specified outcomes. Limitation clauses constrains a greatest on the measure of damages the party may need to pay if there is a failure of some piece of the agreement. Courts by and large translate exemption clauses barely altering it to sensible circumstances. On the off chance that the court thinks that the exemption clause utilized as a part of the agreement is absurd, court can announce it as void. As an agreement can't be made unilaterally, just reasonable confinements can be brought by exemption...
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...HND BUSINESS MANAGEMENT COURSE: ASPECTS OF CONTRACTS AND NEGLIGENCE FOR BUS [Type text] Page 1 Tables of contents Executive summary-----------------------------------------------------------------Introduction--------------------------------------------------------------------------Case study 1a Augustine and Christina------------------------------------------1b Augustine and Florence------------------------------------------Case study 2a Richmond consultancy business---------------------------------Case study 3 Catherine and Daniel---------------------------------------------Case study 4a Telephones supplied cannot be modified--------------------4b Telephones supplied can be modified-------------------------Case study 5 Grace and Office Supplies Ltd-------------------------------------Case study 6 Alfred and George------------------------------------------------------Case study 7a Test for a Tortfeasor as an Employee------------------------------7b Test to determine if employee’s act was during employment-Case study 8a Mary and Barnett Hospital-----------------------------------------8b Mary and Joe---------------------------------------------------------8c Mary and Thomas--------------------------------------------------Conclusion---------------------------------------------------------------Reference/Bibliography------------------------------------------------ Pages Executive summary [Type text] Page 2 This report is made of eight sections (case studies)-case...
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