This is a solution of Contract and Negligence Assignment part 2 in which we discuss a valid contract as if even one element is missing then the contract is not enforceable in law.
Task 2 Issue
Whether Dex & Co (firm) can protect itself against the liability caused to Bertram on the basis of i.the clause in the contract; ii.The notice in the car park.
Whenever, a contract is established by two or more parties, then, they mutually decide the terms and conditions of the contract. These terms can be express or implied in nature. The terms which are either verbally (Bannerman v. White (1861) or in written form (Duffy & Ors v. Newcastle United Football Co. Ltd. (2000) are mutually decided by the parties are called express terms but the terms which are obligated on the parties to be performed under law, custom, precedent or usage then such is called implied terms (AttorneyGeneral of Belize v. Belize Telecom Ltd. (2009). (Weitzenböck 2012) The express terms can further classified into conditions and warranties. Those express terms which are root to any contract and non performance of which will make a contract redundant are called conditions (Poussard v Spiers (1876) and if will allow the plaintiff to cancel the contract and seek compensation. But those terms which are not essential and will not hamper the contract sanctity are warranties and will only allow the plaintiff to seek compensation and will not terminate the contract (Bettini v Gye (1876). (ElawresourceUK 2016) Apart from a condition and warranty there is yet another very important term that is normally found in any contract is exclusion clause. Basically a clause which excludes or limits the obligation of a party to a contract by taking approval from another party to the contract then such causes are called exclusion clauses. These types of clauses can be made part of the contract by various means, such as: i.By putting signatures by the parties. The general rule is when the parties put their signature in the contract then they are abide by the terms if the contract (Chapelton v Barry Urban District Council (1940). If any party is not relying on the clause by specifying that he is not aware of the clause, then, the arty has to prove that all reasonable efforts were taken by him to bring the clause within the notice of the other party (L’Estrange v Graucob (1934). Thus, knowledge of clause is very essential but can be dispense if reasonability is proved y the relying party (Olley v Marlborough Court (1949). (The Law Teacher 2016) ii.By course of dealing the parties may bind themselves by the clause (McCutcheon v MacBrayne (1964). (The Law Teacher 2016) iii.By putting notices and brings such notice within the knowledge of the other party by all reasonable means and efforts. It is important to submit that the clause is valid provided the same is made part of the contact before the contract is established amid the parties. If the non-relying party is no aware of the clause then the relying party must prove that reasonable efforts are made to bring such clause within the notice of other party (Thompson v LMS Railway (1930). (The Law Teacher 2016) Thus, this is the relevant law which is now applied to the given facts and circumstances.
Application and Conclusion
The firm is relying on two separate exclusion clauses, each of them are discussed herein below: i.The clause in the contract – when the contract was made amid the firm and Bertram then a clause was made part of such contract which submits that ‘the firm is not liable for any loss caused to a client, whether as a result of the negligence of the firm or otherwise’. The contract was signed by the parties but Bertram was not aware of the same. When because of firm negligence a loss of £2,000 is caused to Bertram then the main question that arises is whether can firm rely on such exclusion clause or not? The firm can rely on the exclusion clause provided the same is brought within the knowledge of Bertram before the contract was signed by the parties. If the firm can prove that it has taken all reasonable efforts to bring the clause within the knowledge of Bertram before he signed the contract then the clause is applicable and the firm can protect itself from the liability otherwise not (Olley v Marlborough Court (1949). However, if the firm was not able to prove that it has taken reasonable steps to bring the existence of exclusion clause within the knowledge of Bertram, then, such clause is not applicable and the firm cannot rely on the clause and Bertram has full right to sue the firm for the loss so sustained by him because of breach of contract by firm. ii.The notice in the car park – when Bertram visited the office of the firm, then, he parked his car in the firms car park where a notice was displayed stating that ‘Dex & Co accept no responsibility for damage to clients or their vehicles when parked here’. The notice excludes the liability of the firm. Now, the said notice will only limit the liability of the firm provided the same is within the knowledge of Bertram. But, the notice was not read by him. However, by applying the law in Thompson v LMS Railway (1930) it was held that reasonable efforts are made by the firm to bring the notice within the knowledge of Bertram as the same was put up at a place which was reasonable by any person to read the same. Thus, Bertram is liable by such notice and the firm can exclude its liability which arises because if the injury caused to Bertram because of two roof tiles falling on to him.
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