Legal Advice on Contract and Tort Law

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Business Law Assignment

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Part 1
Introduction
The objective of this paper is to provide legal advice to Ira and Mustafa regarding whether
they can make any claim under the contract and tort law respectively. The first issue is
whether Ira can hold Make an Impression Ltd liable for not providing right quality service as
promised and whether the term included in the written contract by the company to
eliminate its liability is considered as valid or not.
Law
A contract creates a legally binding relationship between parties which gives them the right
to hold each other liable for violating its terms. The contract protects the right of
contractual parties to ensure that they can hold another party for the loss which they
suffered due to violation of contractual terms. However, the parties of a contract have the
right to terminate this right if they include an exclusion clause in the contract. Exclusion
clause or unfair term is used by parties in order to eliminate their liability which arises under
the contract to ensure that they cannot be held liable for violating the contract.1 It is
important that the unfair term must be correctly incorporated into the contract. This
principle provides protection to parties of a contract under the common law. As per the
general rule of unfair terms, the clause must be brought to the attention of the parties while
the contract is being formed or before its incorporation.
In case the unfair term is not brought into the attention of the contracting parties, then the
party cannot rely on its protection. This provision was established by the court in the
judgement of Olley v Marlborough Court2 case. In this case, the unfair term was written
behind the door of a hotel, and the contract was formed at the reception based on which
the unfair term was not considered as valid. Moreover, this element was established by the
court in the judgement of Thornton v Shoe Lane Parking3 case. In this case, the court
provided that an exclusion clause which is brought to the attention of the contractual party
after formation of the contract cannot protect the parties. However, an exception was
1 Ewan McKendrick, Contract law: text, cases, and materials (Oxford University Press 2014).
2 [1949] 1 K.B. 532
3 [1971] 2 WLR 585

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provided by the court in case of L'Estrange v Graucob.4 It this case, the court provided that if
the exclusion clause is included in the written contract, then the parties did not have to
bring it to the attention of each other.
Application
In the present scenario, a written contract was formed between Ira and Make an Impression
Ltd, and Ira purchased a specific advertisement from Make an Impression Ltd. However,
after the delivery, Ira found that the advertisement was not as promised by the company.
The liability of the company was excluded by including an exclusion clause in the contract.
Ira can argue that the general rule of unfair term is not fulfilled by the company since this
clause was not brought into her attention while the contract was being formed or before its
formation as provided in the judgement of Olley v Marlborough Court and Thornton v Shoe
Lane Parking case. However, as per the exception given in the judgement of L'Estrange v
Graucob case, the exclusion clause is valid since it is included in the written contract. The
company did not have to bring it into the attention of Ira.
Conclusion
To conclude, Ira cannot hold Make an Impression Ltd liable for violating the contract since
the company eliminated its liability based on the unfair term which is valid since it is
included in the written contract.
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