Advise Robert and Lucy

“An offer and acceptance must fit together like two pieces in a jigsaw puzzle.” If this is to be the case, acceptance must be an unequivocal and final assent to the terms of the offer. In Robert and Lucy’s condition, again problems will arise, however, the essence of these problems are from that question of when the offer was made. If we choose to accept that the dance club in supplying the couple with a leaflet or a telephone call or any other means had made the offer, then the acceptance is the payment of the classes. It is an unequivocal and final assent to the terms of the offer, made expressly and effectively communicated, which shall become more important later on. However, if we decide that an advertisement was present, the offer must surely be the payment by Robert and Lucy with the acceptance being made in conduct by the dance club in taking the money. Whichever way we choose to see the acceptance being made, there is sufficient consideration in order to have a contract. Consideration is simply described as some ‘profit or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other.’ In this particular case, the benefit to Robert and Lucy is that they get to learn a whole new dance step, and the detriment to them is the money the have to ‘fork’ out to pay for it. In regards to the dance club, the benefit is the gaining of money and the detriment is the time and cost it has to put into teaching new clients the dance steps. Thus, although we have realised that there are a certain amount of different possibilities concerning the offer and acceptance of this contract, we are in no doubt that a contract exists. Once this has been decided, we must delve further into the contract, and into the key terms of this contract. This will enable us to reach a conclusion on which to advise Robert and Lucy

The problem of deducing when the offer and acceptance has been made again causes problems when discussing this aspect. If the contract had been formed by the acceptance of Robert and Lucy paying the money, the terms of the contract are the express terms that would have been present on an order form, if there had been one available.

However, we must refer to the question that states: On the back of the receipt a printed clause says ‘For terms and conditions please see the notices in the club.’ The notice inside the club happens to be an exclusion clause to insure the club against any loss suffered by its customers. To analyse the validity of this clause, we shall refer to certain case law. With reference to Olley v Marlborough Court Ltd the terms of a contract must be effectively incorporated into the contract when acceptance is made. In the present case, if we conclude that acceptance was made by payment of the dance classes, the above statement cannot be included into the contract. The receipt in this case is merely confirmation of payment and therefore any additional terms written on the receipt may not form part of the original contract. However, if the acceptance was made at a different time, say that of acceptance by conduct, the statement on the ticket can indeed be incorporated into the contract.

In the question we are also told that ‘they used to go to ballroom dance classes at the same club some years ago.’ This may hold some relevance, due to the principles based in the decision of Henry Kendall & Sons v William Lillico & Sons Ltd where it was held that a term had been sufficiently incorporated due to ‘a consistent course of dealing.’ It may be possible to argue that, if the terms were the same a few years back, the couple were aware of the statement, and due to the consistent course of dealing, the terms and conditions are sufficiently incorporated.

Once the incorporation has been dealt with, it is necessary to discuss the construction, or rather the interpretation of the term ‘The club will not accept responsibility for any loss suffered by customers.’ This clause is very ambiguous in what it says. There is no reference to any sort of negligence, or what sort of loss the clause covers. Injury or losses of personal possessions are not specified in this clause. The Contra Proferentum rule has been put in place to solve disputes over ambiguous clauses, and the ‘exclusion clause is interpreted against the person putting it forward.’ In Houghton v Trafalgar Insurance it was held that if there were ambiguity in the language used, this would be construed in the claimant’s favour.

Having discussed all the relevant parts of a contract, we are now in a suitable position to advise Robert and Lucy and reach a conclusion. A contract has been formed between the dance club and the couple. If the contract was formed at the time of payment by the couple, the term implied by the notice in the dance class applies. However, the term is very ambiguous and we have to decide what it applies to. I would advise Robert and Lucy that they are in a good position to sue the club for injury to Robert and also to the damage caused by the dance instructor, however, I don’t believe that the loss of the coat can be recovered. Due to the Contra Proferentum rule, Robert and Lucy are in a good position to argue their case.