Exclusion Clause Eassy Sample Essay
1614 WordsSep 14th, 20097 Pages
Joe (“J”) is attempting to sue Dazzle Dry Cleaners (“D”) for compensation for the loss occurred due carelessness of D. D will defend itself likely by proving exclusion clause as a part of the terms of its contract with J. In order to advice J it necessary to determine whether the clause has a contractual effect. Secondly it is necessary to determine the terms of the contract and analyse if creation of such clause protects the party relying on it from the consequence of breach. Finally if it’s rendered ineffective by any statue which make D liable for damage, should be discussed.
Contractual Effects of the Contract
In this case main question that arises is whether the exclusion clause is part of terms of contract.…show more content…
Even if D proves exclusion clause part of the contract does not save it from claiming of damages. In order to defend itself D has to prove the damage caused by negligence of the staff members in handling the shirt and losing to a customer who claims to have lost his ticket is a part of exclusion clause. Therefore there is a need of proper interpretation of exclusion clause by examining its language .
The clause here mentions the words “any loss or damage” and “regardless of how that loss caused” may protects D from any claims, but the meaning of the words used is too vast and does not specify nature of the damage and loss thus clause is construed Contra proferentem .
Whereas, following White v John Warwick , ambiguous wording out of exclusion clause would effectively protect D from their strict contractual liability towards J, but it would not exempt them from liability in negligence. Liability of negligence can only be excluded if clearly expressed .
Thus the facts show there was negligence by the staff of D leading to loss cause to J. There is a stress on exclusion clause as a part of contract which might be a deciding factor in this case. Also it is a business contract so it is assumed to create a legal relation between parties (J and D).
Protection against the Breach
In order to determine the terms of the contract it is
Exclusion Clauses In Contracts Essay
The exclusion clause is an important device for allocating the risks between the contractual parties. However, the exclusion clauses could mostly be found in written contracts, especially standard form of contracts. Standard form contracts with consumers are often contained in some printed ticket, or delivery note, or receipt, or similar document. In practice, it is very common that if a person wants the product, he may have no alternative but to accept the terms drawn up by the other party even though such terms are disadvantage to him, or he may simply accept it regardless the possible unfavorable position because he does not trouble to read a long list of terms and conditions. Therefore, contracts are regularly signed, tickets are simply accepted, or a tick-box on a website is clicked, commonly between large companies and individual consumers.
Both the common law and the statutory law have recognized the weaker position of consumers. It is well established an exclusion clause will be valid and enforceable only if it is incorporated in the contract, use clear wordings and does not contravene statutory limits. In order to limit the unfairness resulting from exclusion clauses, the courts have developed certain principles such as the doctrine of non est factum in signature cases, ‘red ink-red hand’ principle in relation to ‘onerous or unusual’ terms, contra proferentem rule when interpreting ambiguous exclusion clauses and ‘fundamental breach’ principle.
It is well established that an exclusion clause will be valid and enforceable only if it is incorporated into the contract. There are several ways in which exclusion clauses can be incorporated into contracts . One way is by giving a sufficient notice. In J Spurling v Bradshaw,_ the defendant stored goods in the plaintiffs’ warehouse regularly. On one occasion, the defendant stored eight barrels of orange juice but some were damaged so he refused to pay. The plaintiffs relied on the exemption clause exempt them from liability for any negligence. The defendant contended that the exempting condition was not part of the contract since he had never read the conditions. In respect of giving a notice, firstly, the notice must be given before the time of contracting. In Olley v Marlborough Court Hotel Ltd, the court found a notice, which came after the contract was made, excluding liability for stolen items was not incorporated into the contract. Secondly, reasonable sufficient notice must be given. In Parker v South Eastern Railway, Mellish LJ found that if the defendant took reasonable steps to give notice of conditions, a person will still be bound by the exclusion clause if he knows that there was writing contained on the ticket, but does not know or believe if the writing contained conditions. In respect of giving a notice of onerous or unusual terms , the court apply the stricter approach to better protect the customers. In Spurling case, the court held the plaintiff was protected by...
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