Exclusion clause
EXCLUSION CLAUSE An exclusion / exemption clause is a clause which if incorporated in the contract will entitle the party seeking to rely on it to exclude or exempt all the liabilities arising from a breach of contract. (And a limitation clause only seeks to limit the liabilities arising from a breach of contract). In order for a party to rely on an exclusion clause he has to first show that clause was incorporated as a term of the contract. At common law an exclusion clause can be incorporated in two ways: by advance notice to the other party that the exclusion clause is to be a term of the contract, & by the signature of the party agreeing to be bound by the exclusion clause. A notice can be given in three ways: notice by display (Olley v. Marlborough Court); notice in a document (Parker v. South Easteern Railway, Chapelton v. Barry Udc); notice by a course of dealing (Henry Kendall v. William Lillico). In the absence of fraud if a party signs the document containing the exclusion clause then it is conclusive evidence that the clause has been incorporated into the contract as a term of the contract (Parker v. South Eastern Railway). And it is immaterial that the party signing the document is illiterate or even blind (L'estrange v. Graucob). If the exclusion clause is properly incorporated into the contract it can even exempt a party for a breach of a fundamental
Offers may be withdrawn at any time up until acceptance Discuss the extent to which you agree with this statement and analyse the rules which determine the validity of the withdrawal of an offer.
Question : ‘ Offers may be withdrawn at any time up until acceptance’ Discuss the extent to which you agree with this statement and analyse the rules which determine the validity of the withdrawal of an offer. The English law on the formation of contract generally requires there to be an offer and acceptance. By the presence of both only then a legally binding bilateral contract can be formed. It is not necessary for a contract to be in a written form. A contract is an exchange of promises and it lies fundamentally at the heart commercial transaction. Contract is an agreement between a person who makes an offer which is known as an offeror and a person who accepts the offer which is known as and offeree. An offer can be accepted or even rejected. In addition to that, it can also be revoked at any time up until acceptance. This is also known as revocation of an offer. This principle was laid down in an old case of Payne v Cave . Once an offer has been accepted by an offeree, a binding contract is formed and the offer ends ultimately. Nevertheless, there are a number of rules apply in relation with the withdrawal of an offer. If an offeror withdraws from an offer but fail to communicate his withdrawal to the offeree, the offer is still considered as valid. Hence it is indeed vital for the offeror to bring the news of his withdrawal to the attention of the
The impact of exclusion clauses on the consumer of goods and services in England and Wales is no longer of any significance. Critically analyse the statutory controls that exist over the use of exclusion clauses and assess the truth of this statement.
The impact of exclusion clauses on the consumer of goods and services in England and Wales is no longer of any significance. Critically analyse the statutory controls that exist over the use of exclusion clauses and assess the truth of this statement. Exclusion clauses are a clause that is included in a contract which seeks to limit the liability that one party owes to another. The courts recognize that there is a need for businesses to impose a financial ceiling on a contract, in order to limit the risk when entering into a contract. This is generally recognized by the freedom of contract however business, with their unfair bargaining position may take advantage of consumers, hence there exist statutory controls to govern the use of exclusion clauses. The Unfair Contract Terms Act 1977 has a significant effect on exclusion clauses. It imposes statutory limits on the avoidance of civil liability through exclusion clauses in business contracts. It only works when one of the parties were dealing as a consumer and another is not. It is interpreted widely, including businesses which are dealing as consumers. l However, the control may not extend to exclusion clauses that are not incorporated into the contract. In the case of R & B Custom Brokers case, the defendants was a shipping company who had purchased zlsome cars, which was merely incidental to their business and not
Detention and interrogation
.2 Assignment Roxanne Slevin Explain how Tom could make a complaint against the police and consider whether he could sue the police The police are accountable to the Chief Constable and the Local Police Authority (LPA); this is made up of local councillors and magistrates. The function of this is to maintain an efficient and effective force, which are all effectively answerable to the Home Secretary. They are not above the law and therefore must operate within the law. They have specific powers and their behaviour is regulated by the codes of practice contained in PACE. However, on the event that a police officer does not abide by these rules, under PACE, a complaint can be made to the force to the Independent Police Complaints Commission 2004 (IPPC). If a criminal offence is found then the DPP is informed, who will decide whether to proceed with a prosecution. There are two means of redress: the complaints process and civil action. In order to lodge a complaint, the complainant needs to submit it in writing to the police force in question. The chief constable then decides how the complaint should be dealt. This could either be by means of an informal resolution or a formal resolution. An informal resolution is merely an apology and an explanation; as long as this is satisfactory then this is acceptable. If the complainant is still unhappy, or it involves a serious
Establish a Sound Relationship with Your Boby
Establish a Sound Relationship with Your Boby The moment you arrived here on this Earth, you were given a body. The body you are given will be yours for the duration of your time here. Love it or hate it, accept it or reject it, it is the only one you will receive in this lifetime. It will be with you from the moment you draw your first breath to the last beat of your heart. Since there is a no-refund, no-exchange policy on this body, it is essential that you establish a sound relationship with it. So, the challenge here is to make peace with your body, and share its valuable lessons of acceptance and self-esteem. If you are open to all these lessons, it can impart to you valuable bits of wisdom that will guide you along your path of life. Acceptance Acceptance is the act of embracingwhat life presents to you with a good attitude. Unfortunately, for many people, their body is the target for their harshest judgments and the barometer by which they measure their self-worth. They hold themselves up to an unattainable standard and berate themselves for failure of perfection. Imposingharsh judgments on your body limits the range of experiences you allow yourself to enjoy. How many times has a potentially wonderful day at the beach been spoiled by your judgments about how you look in a bathing suit? Imagine how liberating it would be to happily walk across the warm sand without
Economic Loss & Negligent Misstatements questions and answers
Seminar 8 (Week 10): Economic Loss & Negligent Misstatements ________________ Sven, an accountant, is asked by Erik to value shares in Bell Enterprises Ltd to discover whether they are likely to prove a good investment. Sven and Erik are old friends and Sven states that he will value the shares for ‘old times’ sake’ but that any statement which he makes as to the investment value of the shares is to be treated as a statement of opinion and that no reliance is to be placed thereon. Sven’s report states that the shares are certain to be a good investment. Erik leaks the report to the Morning Star, which duly publishes it. Sven also informs Matius, over a drink in the pub that shares in Bell Enterprises Ltd are bound to prove a sound investment. Erik, Matius and Annika, a reader of the Morning Star, purchase shares in Bell Enterprise Ltd and lose a substantial sum of money when the shares in the company drop in value. Advise Sven as to his potential liability. . Negligent misstatement - (when a duty of care is imposed upon a defendant for negligent words which cause loss to the claimant) 2. Sven would not be held liable for Erik, Matius or Annika losing money, because the report and advice he gave to Erik was just of a friend, and should not have been taken seriously . Friends - Chaudhry v Prabhakar [1988] – there will be no duty in respect of advice
The time has come for the abolition of civil juries Discuss.
"The time has come for the abolition of civil juries" Discuss. There has been an increase in the number of cases filed in recent times and the time required for each tries has prompted concern amongst the bench, bar and the public. Lord Goldsmith recently announced reforms for complex fraud cases, which would mean that a judge sitting alone can convict defendants without the decision being made by a jury. The government's main concern for this abolition is that it will increase costs and also increase waiting times. In recent time's big fraud trials has cost the taxpayer millions of pounds. One problem is perceived to be the idea of trials lasting several months for jurors. Not many people can commit themselves to the time involved and those who can are felt to be unrepresentative of the public at large. The advantage is that White-collar fraudsters would not escape justice through failings in the legal system. The judge-only trials would be shorter, more efficient and maybe more effective. The problems of handling complex fraud trials have been highlighted over a number of years e.g. by Lord Justice Auld. There are other cases that might benefit from being heard without a jury. Trials involving conflicting medical experts, such as the cases involving parents accused of killing their babies, are equally impossible for a jury to assess, and should therefore be handled by
Case About Consideration
Case About Consideration This is a question involving technicalities in contract law, consideration, human rights and property law. It is axiomatic to recognize the fact that Peter has a legal obligation not to follow Mary deliberately (and she would almost be sure of invoking such a defence), but her request for him not to stay in the same city could be viewed as way above that obligation and thus if Peter does go to the extent of moving away from the city, he could very well have given to her a practical benefit sufficient enough to effect consideration. This however, would only be recognized by the courts as consideration if his acts fulfill the requirement of economic value. The case has since been subjected to publicity since the incursion of the Human Rights movement and the resultant policy concerns. In this question, it establishes relationship between the two parties, Peter and Mary. It is a promise or a set of promises. It is defined as "every promise or set of promises forming consideration for each other". In this case, it is a social agreement which does not create any legal obligation between them. Hence it is not enforceable in a court of law. Thus, this case is an illegal contract. Compensation is assessed on the basis that the applicant must be put back in the position Peter would have been in if the discrimination had not been committed. Similar case
The doctrine of frustration
Taylor v Caldwell (1863) 3 B & S 826; 122 ER 309 (QB) In this case the defendants had entered into a contract on May 27, 1861, by which the defendants (Caldwell) agreed to let the plaintiffs (Taylor) have use of the Surrey Gardens and Music Hall on four future days, these being June 17th, July 15th, August 5th and August 19th. The Hall was to be used to host a series of four grand concerts and day and night fetes at the Gardens and Hall and the plaintiffs agreed to take the Gardens and Hall on those days, and pay £100 per day. After the making of the agreement, on June 11th, 6 days before the first day of the events, the Hall was destroyed by fire. This destruction was without the fault of either party and was so complete that in consequence, the concerts could not be given as intended. When framing their agreement, the parties had not considered the occurrence of such events and as such had no express stipulation with reference to it. The plaintiffs sought damages in the amount of moneys spent for advertising and other preparations for the concerts. It was held, as stated by Lord Blackburn, that the Music Hall having ceased to exist, without fault of either party, both parties are excused; the plaintiffs from taking the gardens and paying the money, and the defendants from performing their promise to give the use of the Hall and Gardens and other things. Consequently
Innominate terms
INNOMINATE TERMS Sometimes it is hard to determine the status of terms, thus an intermediate category for such terms is developed- innominate terms. Whether termination is available depends on the ‘waiting and seeing’ at time of the breach and whether it is so fundamental to strike the fundamental purpose of the contract. If the breach is serious, it will be classified as a condition and able to be rescinded. and if it is not, it will be classified as a warranty- where rescission is not available. The parties may describe the terms as condition themselves. An examination of innominate terms, the courts will not take this as decisive but judge on the facts of the case. They are thus giventoo much discretion and this may potentially be unjust to parties who has really mean the terms to be construed as condtions.zl In the case of Hong Kong Fir Shipping vKawasaki, Here the claimants have chartered a ship for 2 years. Due to faulty engines and inadequate staff, 20 weeks of the charter has been lost to carry out repairs. The ship was contracted to be ‘in every way fitted for ordinary cargo service’ Hence the defendants have obviously able to claim damages but instead they chose to rescind the contract. The claimants sued for wrongful repudiation- claiming that their breach did not entitle them to sue for damages, Conventionally, the courts will determine the status of
