...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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...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...
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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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...The concept of contract nowadays is becoming more and more common in business environment. Contract is defined as an agreement which legally binds the parties (BPP Professional Education, 2004). However there are many types of contract between two businesses such as unilateral, bilateral, specialty, simple and standard form contract. Understanding deeply about deeply about value contract and variously type of contract will really useful for most of company in running their business as well as making it legally in their process of business. In this easy will explore the vital elements which necessary to establish a valid contract and provide some example to explore the term in contract such as condition, warranty innominate terms and exclusion clause. In addition, the essay also gives some case study to illustrate the important of understanding valid contract in their business. I. The element legal issues in business for a valid contract The legal issues are an important part of all business activities of individuals as well as organizations. Therefore, to understand the legal issues in the business activities is essential. It is easy to see Ms. May who is searching for a business opportunity in Vietnam...
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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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...Question 1 Under the s.14(2) goods are required to be of satisfactory quality under s.14(2)d safety and s14(2) .e) durability.14(3) of the sales of goods act states that goods must be fit for purpose in relevance. Section 14(2) deals with instances where goods are usable but have some form of defect. Examples include Ltd Rogers and Another v Parish (Scarborough) and Another 1987 where the Court of Appeal held that a series of defects in a Range Rover made it unmerchantable (not of satisfactory quality) even though it was fit to drive. The relation to the case at hand the Tefal active fry worked but not to a satisfactory level of quality. The law states under the sales of goods act 1979 that goods that are of satisfactory quality are free from minor defects, have good appearance and finish and are durable, safe and fit for all the purposes for which such goods are commonly supplied. In regards to personal injury it has to be noted that under Section 2 limitation Act 1980 claims for personal injury must be brought within three years of the date the tort was committed or the date the tortfeasor was informed of the tort (s.11) If your goods are not satisfactory you may be able to make a claim for up to 6 years in England and Wales and 5 years in Scotland after the purchase of your goods, for a refund, repair or replacement. You must be aware that businesses can protect themselves under the deals as a consumer s.12 1977.In R & B Customs Brokers Ltd v United Dominions Trust...
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...Contracts (Rights of Third Parties) Bill Bill No. 36/2001. Read the first time on 25th September 2001. An Act to make provision for the enforcement of contractual terms by third parties. Be it enacted by the President with the advice and consent of the Parliament of Singapore, as follows: Arrangement of Provisions [ Jump to: Front Page / Arrangement of Provisions / Actual Provisions] 1 Short title and commencement 2 Right of third party to enforce contractual term 3 Variation and rescission of contract 4 Defences, etc., available to promisor 5 Enforcement of contract by promisee 6 Protection of promisor from double liability 7 Exceptions 8 Supplementary provisions relating to third party 9 Arbitration provisions EXPLANATORY STATEMENT EXPENDITURE OF PUBLIC MONEY COMPARATIVE TABLE Actual Provisions [ Jump to: Front Page / Arrangement of Provisions/ Actual Provisions ] Contracts (Rights of Third Parties) Bill Bill No. 36/2001. Read the first time on 25th September 2001. An Act to make provision for the enforcement of contractual terms by third parties. Be it enacted by the President with the advice and consent of the Parliament of Singapore, as follows: Short title and commencement 1.—(1) This Act may be cited as the Contracts (Rights of Third Parties) Act 2001 and shall come into operation on such date as the Minister may, by notification in the Gazette, appoint. (2) Subject to subsection (3), this Act shall not apply in relation to a...
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...Aspects of Contract and Negligence for Business *Unit abstract:- Introduction to the law of contract, with a particular emphasis on the formation and operation of business contract. Business contract shall be defined within the context of law of contract and business law . The former is narrower and the later is wider but all its components are subject to the essential elements of contract. Business law which is also known as mercantile law refers to laws governing and regulating trade , industry and agriculture . It includes laws relating to Contracts , Sale of Goods , Partnership , Companies , Negotiable Instruments , Insolvency , Carriage of Goods , Arbitration..etc. The difference between the law of Tort and the law of Contract is based on obligations and liabilities . In tort the obligations are imposed by law while in contract the obligation of the parties are created by their own free will and mutual consent. Key questions : 1.What are ...
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...ASSESSMENT COVER SHEET DECEMBER SUBMISSION |Unit Number and Title |Unit 5 Aspects of Contract and Negligence – Level 4 | |Assessment Title |Aspects of Contract & Negligence | |Course Title |HND Business | |Assessment Code |HNDBUSMandatoryunit 5/HNDBUSUnit5/Oct2013 | |Hand Out Date |11th October 2103 |Hand In Date |21st December 2013 | |Lecturer(s) |John Owen |Internal Verifier |Jonathan Cartmell | | |Michael Evans | | | | |Anuja Prashar | | | |Sources of information |Course notes. ...
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...Contents 1a. Explain the different types of business agreement and the importance of the key elements required for the formation of a valid contract 9 1b. Analyse the scenario from the perspective of the law of contract. Apply the rules of offer and acceptance in a given scenario, also considering any impact of new technology 11 1c. Assess the importance of the rules of intention and consideration of the parties to the agreement 12 1d. Explain the importance of the contracting parties having the appropriate legal capacity to enter into a binding agreement 14 2a. Analyse specific contract terms with reference to their importance and impact if these terms are broken 16 2b. Apply and analyze the law on standard form contracts 17 References 19 1a. Explain the different types of business agreement and the importance of the key elements required for the formation of a valid contract To implement the business activities with others, an person and even an organization needs make the legal contracts. The contract is considered as a versatile legal tool which guarantees legal enforcement of its terms. There are four popular types of business agreements such as sales agreements, employment agreements, independent contractor agreements and confidentiality agreements (1). * Sales agreements: this is a type of business contract between merchants and consumers. It is considered as a binding contract which binds the related parties if they sign the contract. The parties...
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...The written text in Section 51 (xxvi) of the Constitution would prevent entrenchment of any other interpretations regarding the form of ‘special laws’ and narrows the legislative powers of the Commonwealth to a defined scope. The limiting of this scope would give participatory powers to the Aboriginal people that can be exercised through intervention, in determining laws which serves to their benefit and the maintenance of beneficial laws. This would solidify their special position in the Constitution for they now have a say over the legislations passed ‘for their benefit’. However, truth of the matter was that the Justices in Kartinyeri preferred a divergent view thus no consensus was reached. To date, there is still a lacuna in the law as to the purview of the power under Section 51 (xxvi). In the 2012 Report of the Expert Panel on Recognising Aboriginal and Torres Strait Islander People in the Constitution (‘Expert Panel’), it was recommended for race power to be removed...
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...BUSINESS LAW BLO1105 2014 Prepared by Darren Parker BLO1105 – Business Law ------------------------------------------------- Business Law Students’ Manual ------------------------------------------------- 2014 Edition This Manual contains materials essential for all students undertaking Business Law, including: * ------------------------------------------------- Course Guide for Business Law; * ------------------------------------------------- Unit of Study Syllabus for Business Law: * ------------------------------------------------- Lecture Program for the Unit of Study; * ------------------------------------------------- Tutorial Programs and Questions; * ------------------------------------------------- Past Examination Papers; and * ------------------------------------------------- Other essential data regarding the Unit of Study. Manual and Tutorial Program compiled by Darren Parker (College of Law and Justice) VICTORIA LAW SCHOOL College of Law and Justice Unit Coordinator – Robert Alvarez Robert.Alvarez@vu.edu.au TABLE OF CONTENTS ------------------------------------------------- ITEM DESCRIPTION PAGE/S NUMBER 1. Table of Contents 2 2. Introduction 3 3. Assessment 4 4. Assignment instructions 4 -17 5. Assignment Topics for 2014 18-21 6. Tutorial...
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...EXECUTIVE SUMMARY HYPOTHETICAL SITUATION Tropical lagoon is a new exclusive construction in the thane district of Maharashtra. The project undertaken is a 2bhk residence of 1250 sq.ft with an attached terrace/garden of 350sq.ft.The designer was contracted to carry out interior decoration work for a family of 3(A couple and their son).The theme chosen was a mixture of traditional African decor and contemporary decor. AGREEMENT CLAUSE I /We ___________________________________ (please print name) wish to appoint ___________________________________ (designers name) as the ___________________________________ (professional title) on the ____________________________________________________________________________ __________________________________________________________ (project description) at __________________________________________________________ (project address) I/We agree to the terms set out in this agreement which comprises of Schedule of Services, Schedule of Fees and Terms & Conditions. This appointment was made on ___________ Day of___________ (month) ___________ (Year) Signed _________________________________________________ (client) Signed __________________________________________________ (designer) STRATEGY Strategy is very transparent and simple. It is as follows: Upon acceptance of our client’s proposal to work with us, we get to know them through extensive research and one on one meetings. After gathering...
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...Table of Contents Question 1 2 Question 2 5 Bibliography 9 Question 1 Issue 1: was the Mega refrigeration unit an offer for $200 for the first three customers? Could Betty sue the shop for breaching the contract? Principle/s: Contract could happen anywhere and anytime. Contract is defined as an agreement between two or more legally capable parties and legally binding, which is two or more parties must do it (Pentony, Graw, Lennard, & Parker, 2009). There are seven elements of the contract, which are offer, acceptance, consideration, intention to be bound, mutuality, capacity, and legality. The most important elements in the contract are offer, acceptance, consideration, and intention to be bound. One of the example of contracts that always happens in daily life is advertisement. Advertisement is defined as one of the sales method to attract customers’ attention to purchase the products or services offered by the business. There are two meanings that can be identified under the advertisement which are offer and invitation to treat. Offer is defined as a clear statement when the offeror (a person who makes an offer) promises to do something with an intention to be contractually bound upon acceptance by the other party (Pentony, Graw, Lennard, & Parker, 2009). Similarly, invitation to treat is a statement that has a purpose to invite people to make an offer and it carries no legal obligation. In other word, the offeree (a person who accept an offer) can sue...
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