...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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...Contents Page 1 First Scenario ------------------------------------------------------------------------------------ 3 1.1 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...
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...1. INTRODUCTION It is apparent that two souls have moved into a contract of sale as circumscribe in section 2 (1) SGA, which says that a contract of sale of commodities is a contract by which the dealer agree to hand over the possession of goods to the customer for payment in money, termed as the price. Notwithstanding the conditions of the contract have been fabricated in order to pass over the indispensable rights of the individuals of this contract. The conditions of the contract mention the specific responsibilities and commitment of each individual to the contract. We must seem at the implied terms of this contract in order to incline to the considered objectives of the contracting individuals by way of affirming the demonstrated terms and creating a causal link to those that are not boldly demonstrated In directing the tacit terms for the protection of the people that are to be are established and thus gives rise to any reparation that may be provided by these specifications. 2. THE TWO METHOD BY WHICH CERTAIN TERMS OF A CONTRACT ARE IMPLIED There are two methods by which terms are implied in a contract. By custom, the court and by statute. Normally the terms that has been implied by a custom or the trade usage explain those terms in a conventional way as those circumstances are the common situation within the business context. For instance a case, Mr Deborah buys a car from a well reputed showroom car and so it is expected that the car has to be adequate for...
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...Whilst at work Andy always parked his car in a car park operated by Bash Ltd. On the entry to the car park just in front of the payment machine there is a large sign in fluorescent red paint which states: ‘These premises are not staffed by our employees and may be dangerous. Clients use these facilities strictly at their own 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...
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...Exclusion of liability clauses are designed to exempt a contracting party for breach of contract or negligence. If exclusion clauses are upheld in court the defendant has a complete defence for his action, for them to operate they must cover the breach. The individual wishing to rely on the clause must show that the clause formed part of the contract, either by notice, signature or a course of dealing. Exclusion clauses will only be valid if they are reasonable in accordance with the Unfair Contract Terms Act 1977 (UCTA) (CEM 2013), personal injury and death cannot be excluded at all. Limitation of liability clauses are designed to limit the liability of a contracting party when a contract is breached to a pre-agreed amount. When such a clause is upheld in court for breach of contract, the party that is relying on the clause cannot be held liable for a figure that exceeds the stated amount, although the amount could be less if the claimant’s loss is less. Such a clause legally lessens the risk of a liability which will typically be a debt or obligation. Businesses may attempt to use disclaimers on products they sell to avoid liability in situations like customer misuse, however warranty laws may override any disclaimers of liability placed on products. Fluctuation clause contracts are a way of dealing with inflation on large projects that may last a considerable time (Aeberli 2002). A fluctuation clause has the legal effect that in the event of a specified cost increase the...
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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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...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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...CONTRACT LAW 2012/2013 CONTRACT LAW Content: Formation of contract. Vitiating factors. Terms. Privity of contract. Discharge of contractual obligations. Remedies. Limitation of actions. BEA1003/BEA1003A 2 Contract FORMATION OF CONTRACT A contract was defined in the 19th century by Sir Frederick Pollock as “A promise or set of promises which the law will enforce”. The requirements of a valid contract are: 1.Agreement. 2.Consideration. 3.Capacity . 4.Intention to create legal relations. 5.Form. 6.Legality. Sir Frederick Pollock BEA1003/BEA1003A 3 Contract FORMATION OF CONTRACT 1. AGREEMENT There is agreement when one party (“the offeror”) makes an offer which the other party (“the offeree”) accepts. An offer: Is a clear statement of terms on which the offeror intends to be bound. Can be made to a specified person, a group of people or to the general public. Must be communicated before it is effective. Must be distinguished from an invitation to treat. An invitation to treat is where one party holds him/herself out as being ready to receive offers which s/he may then accept or reject. BEA1003/BEA1003A 4 Contract FORMATION OF CONTRACT The following are examples of invitations to treat: Bidding at an auction . The display of goods in a shop window Fisher v Bell (1961) and on a supermarket shelf Pharmaceutical Society of Great Britain Ltd v Boots (1953). Advertisements (including goods/services advertised in emails and on www pages): In...
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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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...1. 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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...Indesit, founded in 1975, is an Italian multinational company that produces domestic product to export all over the world. Unfortunately, between 2012 and 2013 it faced a significant downfall related, initially, to one of it’s products, the Indesit washing machine WIXL143 and later on the more expensive W1X E167 model. Several costumers complained about the malfunctioning and the unexpected explosion of the models. One customer explained: “During the spin cycle it appeared that the drum had split open and moved the concrete balancing block inside the machine up pushing it’s top upwards”. Looking at this situation from a lawyer’s perspective the consumer is protected, under the 1979 Soga Act, or in other words the Sale Of Goods act that establishes the rights and duties of the seller and buyer and their remedies in the event of a breach. The Act is defined as “a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the price”. It is also important to take into consideration that land and money are not included in the definition of goods. Even in the case that no physical contract for the sale of goods has been written, this Act automatically includes a number of conditions and warranties that in law are called ‘implied terms’. There are four main implied conditions, or major terms which are vital to the main purpose of the contract: -Title (s 12) involving the seller and its right to sell the goods...
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...1. ZÁKLADNÍ POJMY Z PSYCHOLOGIE Psychika - psychické procesy, stavy a vlastnosti vytvářející duševní život jednotlivce. Chování a jednání člověka regulované podle jeho vztahu k okolnímu světu. Psychologie - zabývá se duševním životem (psychikou) člověka. Jako věda vznikla z filozofie v 70. letech 19. st. Duševní život = vědomí, podvědomí, nevědomí, prožívání a chování Chování je to, co můžeme pozorovat na druhém člověku - fyzická a psychická činnost člověka. Hlavní druhy chování: jednání (činnost, kterou člověk vykonává uvědoměle) řeč (verbální chování, všímáme si obsahové i formální stránky) výraz (změny tváře, dechu, tepu pocení, pantomimika, gestikulace) reakce (nepodmíněné reflexy a instinkty) odpovědi (návyky - chování založené na zkušenostech) činnosti (vědomé, často i plánované) Prožívání (procesy, emoce a charakter člověka) - vnitřní zážitky, které si člověk sám ze svého duševního života uvědomuje - to co se děje uvnitř. Vznikají při psychické činnosti a odráží v něm vnější svět. Vědomí (myšlenky) je to, co člověk prožívá a uvědomuje si. Je to projev stupně duševního vývoje a duševního zdraví člověka. Podvědomí (zkušenosti) jsou momentálně neuvědomované, ale předtím vědomě prožité zážitky. Nevědomí (instinkty) probíhající v lidské psychice mimo vědomou kontrolu a zkušenosti. Nemyslíme na ně, ale můžeme si je vybavit. Vychází z genů a vlivu prostředí. ...
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...DOĞAN CÜCELOĞLU'NDAN BÜTÜN ANNE BABALARIN VE ÖĞRETMENLERİN OKUMASI GEREKEN BİR HİKAYE Bir gün seminere başlamadan önce kısa boylu güler yüzlü birisi geldi, Hocam elinizi öpmek istiyorum, dedi. Ben el öptürmekten pek hoşlanmadığım için, yanaktan öpüşelim, dedim, öpüştük. Aramızda şöyle bir konuşma yer aldı: - Hayrola, neden elimi öpmek istedin? - Hocam, üç yıl önce sizin bir seminerinize katıldım. Hayatım değişti. O seminerden sonra daha mutlu bir ailem var ve size teşekkür etmek istiyorum; onun için elinizi öpmek istedim. - Ne oldu, nasıl oldu? - Üç yıl önce şirketimizin organize ettiği iki günlük bir seminerde bizimle beraberdiniz. O seminerin bitişine doğru dediniz ki, "Bir insanın ana vatanı çocukluğudur. Çocukluğunu doya doya yaşayamamış bir insanın mutlu olması çok zordur. Bir annenin, bir babanın en önemli görevi, çocuklarının çocukluğunu doya doya yaşamasına olanaklar yaratmaktır."Bir süre sustu, bir şey hatırlamak ister gibi düşündü, sonra konuşmaya devam etti: - Hatta daha da ilerisi için söylediniz; dediniz ki, "Bir ulusun en önemli görevi çocuklarının çocukluğunu doya doya yaşamasına olanaklar yaratmaktır." Ben bir baba olarak sizi duyduğum zaman kendi kendime düşündüm: Ben bir baba olarak çocuğumun çocukluğunu doya doya yaşamasına fırsatlar yaratıyor muyum? Böyle bir sorunun o zamana kadar hiç aklıma gelmediğini fark ettim. Ben ne yapıyorum, diye düşündüm. Benim yaptığım sanırım birçok babanın yaptığının aynısıydı. Dokuz yaşındaki oğlum ben işten eve gelince...
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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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...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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