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Law Assignment - Breach of Contract/Negligence

   

Added on  2020-03-23

5 Pages1332 Words208 Views
The question that needs to be decided in the present case is related with the liability of MidWinter Show organizers regarding the injuries that were suffered by Yiming when she fell offthe Chair-o-Lift. Now the organizers of the show are claiming that they cannot be held liable dueto the exclusion clause, that was mentioned on the back of the ticket given to Yiming andaccording to which the patrons entered the Chair-o-Lift at their own risk. On the other hand,Yiming and her friend Fatima never saw or read the exclusion clause that was written at the backof the ticket and also on the faded notice.Generally in the course of business transactions, one party tries to insert an exclusion clause assuch party is not willing to accept its liability for breach of contract/negligence on its part. Thelaw allows the parties to insert a clause in the contract to exempt or limit the liability for breachof contract/negligence. But the party can be allowed to depend on the clause by law only if (i)the clause has been properly integrated in the contract formed between the parties and similarlyif (ii) as a matter of construction, it extends to the laws in question. Therefore, it is also necessarythat the clause ought to be legal. According to the first requirement, when a person wants to depend on an exclusion clause, suchperson has to set up that the clause has become a part of the contract. For this purpose, the lawprovides that an exclusion clause can be integrated by signature, by notice or by course ofdealing. The law provides that when a document is designed by the parties which havecontractual effect and at the same time, such document contains an exclusion clause, but clausewill automatically be added to the contract and the parties will be bound by its terms, includingthe exclusion clause. This will be the case even if the other party claims that it has not read thedocuments or it does not understand the document (L'Estrange v Graucob, 1934). But even adocument signed by the parties can also become wholly or partly ineffectively if it is claimed by

the other party that a misrepresentation was made about the effect of the term (Curtis v ChemicalCleaning Co., 1951). An exclusion clause will be present in an unsigned document like a ticketor a notice. Therefore in such cases, the legal requirement is that the other party should havebeen provided reasonable and sufficient notice about the exclusion clause (Thornton v Shoe LaneParking Ltd., 1971). This requirement can be satisfied if (i) the exclusion clause is present in thecontract under contractual document, that is the document that would be reasonably assumed byany reasonable person to contain the terms of the contract and not in a document that onlyacknowledges the payment like a receipt (Parker v SE Railway Co., 1877). (ii) the law alsorequires that the presence of exclusion clause in the contract should be brought to the notice ofthe other party before such party has entered into a contract or when it is going to enter thecontract (Olley v Marlborough Court 1949) (iii) the presence of exclusion clause needs to bebrought to the other party's notice. In such cases, the requirement is not of actual notice but ofreasonable notice (Thompson v LMS Railway, 1930). In such cases, what can be described asreasonable notice differs in each case and the circumstances of the parties. However, the courtshave repeatedly mentioned that the attention of the other party should be drawn towards thepresence of the exclusion clause in clear words and on the front of any document that is given tothe printed. For example, it can be written on such document, "For conditions, see back". Thedegree of notice, that needs to be given to the other party increases in accordance with theunusualness of the exclusion clause. Another way to add an exclusion clause in a contract is to get the signature of the other party onthe contract carrying the clause. The law provides that when a person has signed the contract,including the exclusion clause, such person will be bound by the clause. Even if such personclaims to have not read the clause or he did not understood the clause. Another way of

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