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exclusion clauses in standard form contracts
Advantages and disadvantages of exclusion clauses
exclusion clause in a contract
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An exclusion clause is a term of a contract which either limits the liability for a specific loss or injury; or the liability of one or both parties within a contract. The law on exclusion clause applies only business to business or consumer to consumer. The first way an exclusion clause is regulated is through incorporation by writing. Stuart signed a standard contract agreeing to buy six Land Rover Discovery cars from Keith at a price of £80,000. This is similarly identified in the case of L 'Estrange V Graucob [1934] in which Miss L 'Estrange signed a contract to buy a cigarette machine from the company Graucob. From this comparison it is noted that Stuart is bound by the contract and any injury or damages caused to the cars is not to be the fault of Keith 's, because Stuart has signed the contract. This is because the incorporated written …show more content…
S 11(2) indicates that after signing the contract, though Stuart did not read the contract he was aware of the circumstances if something went wrong. Stuart aware of this cannot sue Keith for the faulty car. Similar conclusions can be drawn from the case of George Mitchell v Finney Locks Seeds [1983] where the clause excluded any loss or damage from the use of the seeds. To conclude whether Tiff is correct about suing Keith for the negligence of the car, Stuart is unable to claim legal action against Keith for the faulty engine and gearbox. Stuart cannot take Keith to court because he agreed to buy the cars in the first place and signed the contract. Stuart may not necessarily have read the exclusion clause should have been aware of it anyway. Therefore, the written document indicates that there is no point for Stuart to see the exclusion clause on a sign. Although, Stuart is unable to sue Keith for the car. He can still sue for the personal injury due to Keith’s
It was found in the respondents submissions that a duty of care was necessary. The issue of negligence he believed was unsustainable as the risks were minimal and it was not unusual to take one’s eyes off the road. Causation was not satisfied as the judge concluded that the respondent would not have had enough time in any circumstance to avoid a collision with the cow.
...useless car to a junk yard to recover some loss, but the difference of the re-sale of the junk-car would be a significant loss. Though there were no adequate assurances to the contract, anticipatory repudiation is the only probable remedy for Jack. However, the outcome would weigh on the predominant factor test, which is met because Tom is covered as a merchant because he is operating in his usual daily business, and Jack is the buyer. The sole purpose of the contract was for Tom to sell Jack a car, and for Jack to buy a car from Tom. The UCC, though less stringent than the statute of frauds, does effectively regulate commercial transfers allowing the free market to operate without diminishing the integrity of trade.
Defendant must show that plaintiff failed to take reasonable care for their own safety which caused the damage. It is not necessary for plaintiff t...
Legal Studies Essay Joey Agerholm Exclusion clauses determine the liability of something that might go wrong within a contract. They are used by sellers as an attempt to avoid or limit their liability. The seller has the advantage over the buyer who must agree to the clauses to purchase the product/service. Because of the buyers disadvantage the court takes such cases, involving exclusion clauses, very seriously, and the content of the clauses are carefully interpreted. With the current Trade Practises Act and the Fair Trading Act the standard form of business contract is adequate and effective in protecting the buyer. The Trade Practise Act is the most effective legislation for the protection of the consumer. It implies to the following situations:- - “A promise by the seller that the buyer will become the owner” If a car dealer breaks a promise or part of a contract, for example that he has the right to sell a car, and the car is stolen then although the buyer will have to give the car back he/she will get her money back. - “ A promise by the seller that goods will fit the description supplied by the seller” In this case the buyer is protected if the seller makes a promise, which is a condition of the contract, describing the product, and when the buyer receives the product, it does not match the description. - “ A promise where the seller is made aware of the purpose for which the goods are required, that the goods will be reasonably fit for that purpose” This condition is implied when the buyer makes the purpose of the goods needed known to the seller, and the buyer then relies on the seller’s judgement in providing the correct product. For example it would not be reasonable if you made the seller aware that you wished to purchase something suitable for mowing the average suburban backyard and you were sold a tractor. - “A Promise that goods are of merchantable quality” According to this act a good is considered to be merchantable if they are suitable for the prospect for which other similar goods are sold, involving the description applied to them, the price and any other relevant information. This act does however does not protect the consumer if he/she has examined the product and missed any defects that should have been seen or if the seller made him/her aware of the defect prior to the purchase of the product.
The Plaintiff Julia Bishop was severely injured when Elizabeth Morich’s foot slipped off of the brake and onto the accelerator and struck the Plaintiff, pushing her through the wall of the storage shed. Elizabeth Morich did not have a driver’s license at the time, nor had she begun driving instruction. The Bishops sued Elizabeth Morich on a theory of negligence and her parents on a theory of negligent entrustment and supervision. The trial court granted summary judgment for the Defendant’s parents on the negligent entrustment supervision account.
FACTS: Mr. Henningsen purchased Plymouth 1995, from a Chrysler dealership, which later on him and his wife sued. Mrs. Henningsen got injured while driving the car on the paved and smooth highway in New Jersey, when all of a sudden the plaintiff heard a loud noise underneath the hood and the car ran into the wall. The witnesses were present. The defendant in his defense brought up the "Conditions" part of contract, that there was a provision stating
The tort involved in this case is that of negligence, which is defined as the breach of an individual’s duty to take reasonable care in situations where damage has occurred to another person or organisation (Legal Services Commission, 2013).
concluded that the company had the ability to specifically exclude products from exclusion, and therefore if the company interned to exclude “third party fees” and “fees, fines and penalties” from the exclusionary law, they held the responsibility to do so. See New Madrid County Reorganized School Dist. No. 1 v. Continental Cas. Co., 904 F.2d 1236, 1240-41 (8th Cir. 1990) ("If Continental Casualty wanted to exclude this type of liability from its policy it could and should have done so explicitly. Absent an explicit exclusion, we must apply the language as
Contract laws had two problems which are old contract law principles often did not reflect modern business practices, and law had become different from one state to another. On many legal topics, contacts law included the national government has had a little to say and has allowed the state to act individually. The UCC was made as an effort to answer two problems. I was a proposal written by legal scholars not a law drafted by members of congress or stat legislatures. The scholars at the American law institute and the national conference of commissioners on uniform state laws had great ideas but they had no legal authority to make anyone do anything. Over time, lawmakers in al fifty states were persuaded to adopt many parts of the Uniform Commercial Code. They responded to persuasive arguments such as businesses will benefit if most commercial transactions are governed by the modern and efficient contract law principles that are outlined in the uniform commercial code. Also businesses everywhere will be able to operate more efficiently, and transactions will be more convenient, if the law surrounding most of their transactions is the same in all fifty states. The main focus is in the article 2 of the uniform commercial code book.
It is highly unlikely that a court would find that Billy Jean owed Donald and Co a duty of care to avoid the purely economic loss. Pure economic loss is described as financial, monetary loss generally attributed to ‘damage’ to an individuals ‘wallet’. For a claim to be valid and considered the steps to pursue a cause of action in negligence must be followed, the first of which is establishing a duty of care owed, in this case by Billie Jean to Donald & co. In this case it is found that no duty of care is owed and thus no claim for compensation can be lodged. In an attempt to establish a duty of care the plaintiff must be deemed vulnerable under the salient factors, the plaintiff being Donald & Co which in this case are not vulnerable. This characterisation of non-vulnerability is derived from the class of sale of the property as well as numerous general assumptions as to the experience of Donald & Co. It is expected under the assumption of Caveat Emptor as well as for the magnitude of purchase that Donald & Co have access to the building records and history of inexperienced builder Billie Jean as well as the financial status of
Review the scenario below. Consider the legal principles influencing the likelihood of any successful action against Steve in negligence.
...clauses must pass the test for reasonableness. In Smith v Eric Bush [1989] (1990 AC 831), a surveyor sought to exclude liability for negligent misstatement when completing mortgage valuations. The disclaimer excluded liability to any third party relying on their advice. it was decided that there was no contractual agreement between the plaintiff and defendant and it did not prevent any duty of care arising. It was subject to s2(2) of UCTA and was found to be unreasonable. As this case is so similar to that of Brad and Chardonnay, one could only assume that the same verdict would be made towards Briks & Mortimer Chartered Surveyors’ exclusion clause.
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
S.6(3) states that as against a person dealing otherwise than as consumer liability for breach of the obligations arising from ss.13, 14 or 15 of the Sale of Goods Act 1979 can be excluded or restricted by reference to a contract term, but only in so far as the term satisfies the requirement of reasonableness.
The Act allows negligence as the sole ground unlike common law which required the claimant to establish ‘fraud’ even if negligence existed. It is believed that the ‘d...