LAW. [Date]. Question 1. Issue. The main issue is to de

LAW
[DATE]

Question 1
Issue
The main issue is to determine whether the statements of Effah regarding MowMaster 3000
would be considered as part of the sale contract or not. Further, it is imperative to highlight
the requisite condition when a representation would be categorised as term for the contract.
Rule
Representations are factual statements about the product or services which the seller party
makes during negotiation with the buyer in the per-contractual phase. Thus, it is an essential
aspect to distinguish the statements from puffery because puffery unlike representation is
considered as mere information/opinion which is non-factual1. Further, some of the
representations which are critical for the buyer party to enact the contract with the seller and
absence of such qualities the buyer would not enter into the contract are categorised as term
of the contract2. The segregation of term from mere representation is an imperative parameter
because breach of term would result breach of the contract between the parties. The verdict of
Oscar Chess v Williams3 case is the testimony of this aspect. The representation stated by the
party who has reasonable knowledge about service/object would be considered as term of the
contract if the statement is considered essential for contract enactment for the other party4.
Application
The various statements stated by Effah needs to be discussed in order to determine whether
the statements would be categorised as term for the contract or not. The set of statements
which are the opinions of Effah regarding the MowMaster 3000 being amazing is mere
puffery to get the client into contract and would not be considered as representations. Further,
a representation made by Effah is that the MowMaster 3000 is made in Germany and with the
help of best quality parts. However, it would also not be considered as term because it is not
an essential aspect for Joan. Another representation that the mower contains blades that can
cut anything without turning blunt and with less time would be categorised as term of the
1 Carter John, Contract Act in Australia, (LexisNexis Publications, 2014, 3rd edition) 63
2 Taylor Richard and Taylor Damian, Contract Law, (Oxford University Press, 2016, 5th edition) 145
3Oscar Chess v Williams [1957] 1 WLR 370
4 Robert Bryan Vermeesch and Kevin Edmund Lindgren, Business Law of Australia, (Butterworths, 2013, 12th edition) 119
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contract because it is a prerequisite for Joan to enter into the contract. This is evident from the
fact Joan runs a lawn mowing business which requires a sturdy lawnmower machine that can
be used for frequent use. Hence, only this statement of Effah would be categorised as term for
the contract and the other statements are just non-factual statements.
Conclusion
Based on the above, it can be concluded that Effah’s statement related to the MowMaster
3000’s blade and no blunt feature is considered as term of the contract.
Question 2
Issue
The issue is to find whether an exclusion clause in the form of display at the backside of the
counter will be enforceable on not considering that the sign is not visible to Joan.
Rule
Exclusion clause refer to terms which the concerned party insert in order to limit their
contractual liabilities for certain defined outcomes or events. There are some necessary
conditions that must be fulfilled for the enforceability of the exclusion clause. Further, as per
the verdict given in L'Estrange v F Graucob Ltd5 case, the exclusion clause would be
enforceable even though the other party has not read it in the written contract and just signed
it. In such scenario, it has been assumed that the parties have read the various essentials of the
contract along with the exclusion clause and hence, it would be applicable on the contract.
Further, another condition is that if the exclusion clause is not mentioned in the written
contract then the party must take reasonable measures to bring the notice of the other party
about exclusion clause6. This is essential for the case when the exclusion clause is highlighted
in notice board or in the form of display picture unless the respective buyer has past dealing
with the party as evident from the judgment of Balmain New Ferry Co Ltd v Robertson7 case.
Application
5L'Estrange v F Graucob Ltd [1934] 2 KB 394
6 Shayne Davenport, Business and Law in Australia, (Thomson Reuters, 2014, 5th edition) 125
7Balmain New Ferry Co Ltd v Robertson (1904) 4 CLR 379
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