...Names | THAI BAO NGOC (GEM) | Program/Intake & your program manager | DIP13B/ INTAKE 13/ SANDY CHOW | Student No. | DIPBA1321 | Module/Course/Unit | DIP13B/ BUSINESS LAW | Lecturer | MR. ROBIN PETER LANGE | Assignment No. | 1 | Assignment Due Date | 16th of December 2009 | DECLARATION: I hereby declare that the attached assignment is my own work. I understand that if I am suspected of plagiarism or another form of cheating, my work will be referred to the Academic Review Committee/Registrar, which may result in me being expelled from the program. | Signature | | Submission Date | 16th December 2009 | EXEMPTION CLAUSES RELATING COMMON LAWNAME: DOAN THAI BAO NGOC (GEM)CLASS: DIP BA/INTAKE 13THSUBJECT: BUSINESS LAWLECTURER: MR. ROBIN PETER LANGE | QUESTION 1 Discussion of Exemption Clauses Relating To The Common Law Common law can be seen as cases between parties who might involve in expressing terms of contract from a party that could be not read by other parties, buying a ticket or negotiating about contractual terms happening anywhere (Leong 1988, pg.291). Also, the contractual terms from the contract negotiated by both parties in common law are defined as exemption clauses. These clauses seek to exclude or limit their liable for breach of contract from a party to others in common law...
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...Table of contents Abstract 3 Introduction 4 ESSENTIAL ELEMENTS OF A VALID CONTRACT 5 Explain different types of business agreements and the importance of key elements require for the formation of a valid contract. 5 Apply the rules of offer and acceptance in the given scenario, also considering any impact of new technology. 5 Assess the importance of the rules of intention and consideration of parties to the agreement by applying. 7 Explain the importance of the contracting parties having the appropriate legal capacity to enter into a binding agreement 7 SPECIFIC TERMS IN A BUSINESS CONTRACT. 8 Analyze specific contract terms with reference to there importance and impact if these terms are broken using Mr. John’s contract for purchase of computers. 8 Justify the selection of methods/ techniques that Mr. John should use for the termination of contract with Mr. Bobs Company. 8 Apply and analyze the law on standard form contracts in the given scenario 9 Discuss the effect of exemption clauses in attempting to exclude contractual liability in the given scenario 11 LAW OF TORT IN BUSINESS ACTIVITIES AND PARTICULAR FORMS OF TORTIUOS LIABILITY. 12 Describe the nature of general tortuous liability comparing and contrasting to contractual liability 12 Explain the liability applicable to an occupier of premises in the given scenario 13 Discuss the nature of employer’s liability with reference to vicarious liability and health and safety implications taking Mr. Bobs Company...
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...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 and claim damages. A breach...
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...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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...Question 1 Issues • Whether the hotel is responsible to the negligence. • Whether the exemption clause can exclude its liabilities. Analysis First of all, we need to clarify whether the hotel is responsible to the negligence. To succeed a tort action, the following element must be satisfied: • The defendant owes a legal duty of care to the plaintiff; • The defendant breaches the duty of care; • The plaintiff’s loss or damage is a consequence of the breach of duty (Causation). Duty of Care • The duty of care is a duty ‘to take reasonable care to avoid acts or omissions that may reasonable foresee would be likely to hurt your neighbours.’ • ‘Neighbour are persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are being called in questions’ (Donoghue v. Stevenson 1932). • The application of the Neighbour Principle is subject to the requirement of: - Reasonable foresseability - Sufficient proximity by reference of cause and effect (the relationship between the defect of the brake and the car accident) Bourhill v Young [1943] - It is reasonable to impose such duty on the defendant (Caparo v. Dickman Plc 1990) • Customers are neighbours of the hotel, so the hotel owned a duty of care to the costumers’ personal safety and their financial interest under the neighbour principle...
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...Was there a Contract Formed? 1.2.1 Existence of Offer 1.2.2 Existence of Acceptance 1.2.3 Existence of Consideration 1.2.4 Existence of Intention to be legally bound 1.2 Terms v Representation 1.3 Condition v Warranty 1.4 Remedies for Breach of Condition 1.5 Exemption Clause 1.6.5 Incorporation by Signature 1.6.6 Incorporation by Notice 1.6.7 Construction 1.6.8 Unfair Contract Terms Act 1.6.9.1 Reasonableness 1.6.9.2 Hire-Purchase Act 1.6.9.3 Misrepresentation Act 1.6.9 Legal Advice 1.6 Misrepresentation 1.7.10 Materiality Test 1.7.11 Actual Inducement Test 1.7.12 Types of Misrepresentation * Fraudulent Misrepresentation * Negligent Misrepresentation * Innocent Misrepresentation 1.7.13 Remedies for Negligent Misrepresentation 1.7.14 Legal Advice 1 Second Scenario ----------------------------------------------------------------------------- 14 2.7 Fraudulent Misrepresentation 2.8 Remedies for Fraudulent Misrepresentation 2.9 Legal Advice 1 First Scenario In order to address if Will is legally bound to purchase the art piece from grace or whether he can sue grace for breach of contract, we must first ascertain if there is a contract being made between the two parties. 1.1 Was there a contract formed? ...
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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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...Commercial Law Assignment 1. In this essay will discuss the following case which involves two parties, Alan the passionate drinker and Ben the salesperson. Alan is an individual whom only drinks vodka that is distilled in Russia and Ben the salesperson, who sold him three bottles of liquors claimed it, is distilled in Russia which is untrue. Alan and his friends drank three bottles of liquor and got ill. In this discussion will determine if there was a legal binding agreement which is, contract formed between both the parties Alan and Ben. There are four elements to form a contract (Burton's Legal Thesaurus, n.d. para.1). The first element will discuss about legal capacity. Both Alan and Ben are in legal age (above 18 years old) and furthermore Alan and Ben are not under the influence of intoxication, nor are they both suffering from any mental illness. Therefore they are not considered as minors and are knowledgeable of understanding the nature of the contract and possess legal capacity. The second element will discuss on agreement, which consist of offer and acceptance. In order to impose this element there must be a party making an offer, and another party agreeable to accept the offer. The offeror in this case will be Ben and the offeree will be Alan as follows. Usually goods which are displayed at a shop are not an offer but an invitation to treat, whereas in this case it is otherwise because Ben showed him those drinks and explained the backgrounds between them....
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...Q1 a) Whether Carmen can sue Martin for breach of contract No, Carmen cannot sue Martin for breach of contract. Martin's words to Carmen that ‘This T-shirt suits you very much and you cannot find it in any other boutique! It is only sold at $80!’ is not an offer, instead, it is just a invitation to treat . Offer is the expression of a person's intention to others to have a legally binding agreement. Offer is not an invitation to treat. Invitation to treat has no legally binding effect. Harvey v Facey [1893] UKPC 1, in case supply of information is not an offer. Martin's words are provision of information, they are not offer. So, no contract formed between Martin and Carmen. Carmen cannot sue Martin for breach of contract. Carmen can make the offer by requiring to buy the T-shirt, and the sales was completed when Martin accept Carmen's offer to buy. b)Scenario 1 No, Martin cannot sue Joyce for breach of contract. Joyce's letter is an offer. Offer is the expression of a person's intention to others to have a legally binding agreement. Basic terms of contract, normally the price and property, are needed in the offer to form an agreement. The computer model and the price were mentioned in the letter, so the basic terms are satisfied. Moreover, an offer must show the intention of the offeror to make an offer to the offeree. The letter's further content about the reply method and additional condition about the sale shows the Joyce's intention to make this offer. Martin's response...
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...also very small. The room was not facing the sea but the swimming pool instead. The food served was not international cuisine but local dishes instead. There was no gym, no SPA, no Olympic size swimming pool. Actually, there was only one pool for children. There was no scuba diving activity as well. The bicycle tour and the island hopping activities were also not carried out. When they returned to their room, they were horrified to discover that their belongings were stolen. Zarul and Zarina lost a few thousand ringgits and the children lost their DSLR cameras and hand phones. When they reported the matter to the hotel management, they were told that the hotel management was not responsible for the matter. The hotel relied on the exclusion clause that can be seen at the...
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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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...Assignment 2 Part (a): Issue: Whether Robin has contractual rights in relation to the window coverings? Rules/ Applications: 1. Signature rule: The law states that a term is promissory and can be made expressly or impliedly. In this case, the term made between Robin and Sarah was in the written form and according to law, it is classified as express terms. In addition, Robin also signed the contract made by Sarah. Therefore signature rule applied and Robin was bound by the contents of the documents even though she did not read and understand the contract (Case from L’Estrange v Graucob). 2. Parol Evidence Rule Written contract contains all the terms and conditions of the agreements, and Sarah cannot subtract form, add to, vary or contradict the language of the written instrument. 3. Whether the Oral statement made by Sarah is a term of contract? In this case, at one of Robin and Sarah’s meetings, Robin asked Sarah whether the price of the house included curtains, blinds and window coverings. Sarah explained that all window coverings were provided for in the contract. An oral statement or representation only becomes part of the contract if a reasonable person would have regarded it as promissory. * Reasonable bystander test (Case from Oscar chess v Williams) 1) How objectively important is the representation to the overall deal? Before Robin purchase the house, she concerning about whether the house price include the window coverings...
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... Formation of the contract Offer and Acceptance * “The law’s treatment of advertisements and the displays of goods in shops reflect ideas of freedom of contract as well as common sense in commerce.” Discuss. Postal Rule * “The postal rule may have been justified by the forms of communication at the time the rule was articulated but its continued use is akin to ‘flogging a dead horse.'’’ Discuss. * “The postal rule may seem anachronistic, yet although it does reflect the age in which it came into being, it remains applicable in the age of electronic communications.” Discuss. * “The postal rule may have been the correct rule to apply to the acceptance of an offer at the time it was created, but in an age of electronic communications it should be abolished.” Discuss. * With reference to the postal rule, critically assess the way in which literature and history can shed light on a principle of law. * The postal rule may have made a lot of sense at the time it was first articulated but it is not suited to modern forms of communication. Discuss. Intention to create legal relations * “The requirement that parties ‘intend to create legal relations’ is an outdated, unjust and unnecessary element of the law of contract formation.” Discuss. * Explain the test or tests that have been used to distinguish between: (1) an invitation to treat and an offer and (2) a counter offer and a request for further information. * “The law on the requirement...
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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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...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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