The Use of Exemption Clauses

The common law doctrine of duress allows a party to avoid any promise extorted from him by terror or violence. A contract that has been made under such circumstances is said to have been made under duress. If duress is established it has the effect of rendering the contract voidable. As mentioned previously, agreement in the law of contract depends upon consent. The juristic basis for duress is that agreement obt... ... middle of paper ... ...[1976] 1 Lloyd's Rep 293 [13] North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 [14] Atlas Express Ltd v Kafco (Importers and Distribution) Ltd [1989] QB 833 [15] CTN Cash and Carry Ltd v Gallaher Ltd [1994] 4 All ER 714 [16] Pao On v Lau Yiu Long [1979] QB 705 [17] Tate v Williamson [1866] 2 Ch App 55 [18] Allcard v Skinner [1877] 36 Ch D 145 [19] Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 [20] Lloyds Bank v Bundy [1975] QB 326 [21] National Westminster v Morgan [1985] 1 All ER 821 [22] Goldsworthy v Brickell [1987] Ch 378 [23] BCCI v Aboody [1990] [24] Barclays Bank v O'Brien [1993] 4 All ER 417 [25] CIBC v Pitt [1993] 4 All ER 433 [26] Massey v Midland Bank [1995] 1 All ER 929 [27] Banco Exterieur Internacionale v Mann [1995] 1 All ER 936

The Third Party Insurer is the one responsible of settling the claim and thus should be responsible of recognizing the income as revenue. The same scenario applies to the case of reinsurance. The ASC 605 – 45 is categorically clear that it does not cover transactions that include premiums for insurance and reinsurance (Miller, 2013). This means that the claim by Crazy Computers Retailers to recognize the commission revenue generated from sale of extended warranty contracts is flawed. Since this provision does not cover insurance related concepts, it would be thus erroneous to use this provision.

This was done by introducing provisions, which dealt with, prohibition of anti competitive agreements and abuse of dominant position. Section 2 of the 1998 Act is similar to Article 81(1) of EC law. Section 3 excludes certain types of agreement – such as mergers, which come under the ambit of the Fair Trading Act 1973. Section 50 provides for the ad hoc exclusion of land agreements and vertical agreements. Section 4 provides for the granting by the Office of Fair Trading of ‘individual exemptions’ from the prohibition where conditions set out in section 9 are satisfied by the agreements in question.

When a sale of goods involving consumer and corporations, Trade Practices Act and the Goods Act ; statutes established by the Commonwealth and its State parliament; may be used to protect consumers from the conduct of these contracts. Act s.4B of TPA defines a ‘consumer’ as someone who acquires goods or services for less than $40,000. Act s.85(1) of Goods Act applies if goods are worth less than $20,000. IMPLIED TERMS The case of BROGDEN v METROPOLITAN RAILWAY illustrates one of the early cases of implied terms; in which the conduct of a party is sufficient for the courts to hold an implied terms judgement, despite a lack of an offer & acceptance. The unilaterally signed agreement was actually a counter-offer, despite there was no mutual agreement to the changes of terms by Brogden.

In National Westminster Bank plc v Morgan, Lord Scarman referred to Poosathurai case and said that a court could set aside an undervalued transaction as unconscionable if it was shown or could have been presumed to have been obtained by undue influence. The decision in Poosathurai was further reaffirmed in Polygram Records Sdn Bhd v The Search & Anor . Thus, unconscionability is so closely related to undue influence that it cannot have a separate existence under section 16 (3) but it is limited to procedural and evidential purposes only. Conclusion The doctrine of unconscionability and the related principle of inequality of bargaining power are evolving, yet, not completely settled areas of the law of contract. Although both doctrines share similar objectives which are equitable in nature to p... ... middle of paper ... ...ally induced the transaction through influence given by the party.

RIGHTS IN PERSONAM (PERSONAL EQUITIES) Apart from the fraud exception stipulated in the Act as discussed in the above section, there are exceptions to indefeasibility based on personal equities or rights in personam. The personal equity may arise because of the conduct of the registered proprietor before or after the registration. In Bahr v Nicolay (No 2), Wilson and Toohey JJ stated that indefeasibility does not protect a registered proprietor from the consequences of his own conducts where those conducts give rise to a personal equity in another. Furthermore, as Brennan J pointed out: the purchaser who not only has notice of an antecedent unregistered interest but also purchases on terms that he will be bound by the unregistered interest is subject to that interest. Akin to Bahr v Nicolay, by notice of the Stan’s interest in the property and gave the promise to honour the agreement, Stan’s interest constituted an equitable interest in the land.

(Can be actual loss or future loss) In the present scenario the characteristics has been further studies and in the Judgment for the case Erven Warnink B.V. v. J. Townend & Sons (Hull) Ltd., 1980 RPC 31, Lord Diplock gave the essential modern characteristics of a passing off action. These are as follows: • Misrepresentation, • Made by a person in the course of trade, • To prospective customers of his or ultimate consumers of goods or services supplied by

A contract is said to be discharged when performance becomes impossible, illegal or radically different from what was formerly envisaged. In other words, a contract is frustrated, when, after the contract is made, and without the default of either party, a change of circumstances occurs which renders the contract legally or physically impossible of performance. From the journal article, it is said that cases have usually been confined to uncommon situations, or situations where it would be extremely tough to arrange for another individual, or a third party to carry out the service in question. The doctrine of frustration has fallen out of vague due to the development of statutorily implied terms. In the case of Atwal v Rochester , the High Court has placed it firmly back on the agenda for sole traders, and those contracting with them.

MA 1967 s. 2 (2) applies to all non-fraudulent misrepresentations. MA does not apply to fraudulent misrepresentation. This is because fraud hardly can be considered as trivial. I følge Jill Poole skal er det tre vurderingstemaer: The nature of the misrepresentation, including its seriousness, cf William Sindall plc v Cambridgeshire County Council (1993) Whether the representee will suffer greatly if not allowed to rescind Whether the representor would suffer unduly if rescission where allowed, cf William Sindall plc v Cambridgeshire County Council (1993) According to Salt v Stratstone Specialist Ltd (t/a Stratstone Cadillac Newcastle) (2015) the rescission must be available at the time the court is to use its discretion. The measure of damages under MA 1967 s. 2 (2) must be viewed in the light of its purpose, namely to compensate the loss of the right to rescind.

The eBay ruling disapproved the presumption of irreparable harm patent owners, and stressed the consideration of public interest when deciding to grant an injunction relief or not. The rule established in the eBay ruling would be instructive for F/RAND-encumbered SEP cases. Also, Court of Justice of the European Union (CJEU) issued its judgment in Huawei v. ZTE, setting out certain conditions for obtaining an injunctive relief for an SEP