Legt AssignmentNovember 12, 2017
Vincent is demanding corporations from Claude for the damages incurred from the paints provided. Claude, however, refuses this claim by arguing that he is protected by an exclusion clause – the words on the receipt and sign. Given that negligence was apparent and that the exclusion clause did not fall foul of any statutory regulations; whether Vincent will be successful In his claim, ultimately Lies In the question was Vincent bound by the words on the receipt or sign?.
To reach a inclusion regarding this issue, it is necessary to examine the following legal matters raised: 12 1. 2. 3. 2 Are these words considered to have contractual effect? Were the damages that resulted from the breach covered by these words? Would Vincent be bound had the clause been misrepresented by Clause’s salesman? Background: what Is an exclusion clause 3 From a legal perspective, the words on the receipt and sign are referred to as an exclusion clause – a contractual term which attempts to Limit or exclude liability of the person inserting it into the contract.
Therefore, for Vincent to successfully make a claim against Claude, he must show that the outcomes of either of the first two Issues mentioned above Is negative – I. E. He must show that either. “the words do not have a contractual effect”, or that the “breach is not covered by the exclusion clause”. 3 4 Do the words have a contractual effect? Incorporation For the exclusion clause on the sign and receipt to effectively exclude Claude from any liability and hold Vincent bound, it must have been incorporated into the contract, I. . Does the clause form part of the contract? 5 The two general forms of incorporating an exclusion clause are either: D Signed Exclusion clauses incorporated through signed document are probably the least controversial method in validating its effect. The clause contained in a signed contract is held to be bound by the claimant, irrespective of whether the contract was read or understood by the signatory – as was the case in Lagrange v Curaçao Ltd (1934). However, 8 where there is a case of fraud or misrepresentation of the contract, the exclusion clause is held to be ineffective and therefore the signatory will not be bound, as illustrated in the case Curtis v Chemical Cleaning & Dyeing Co (1951). In this case, it seems unlikely that Claude had incorporated the exclusion clause into a signed document, but had instead relied on standard contracts to validate the clause. As stated in the facts, the clause was displayed on both a sign and the receipt.
To be effectively exempt of any of Vincent”s claims, Claude must prove that Vincent knew of this clause or that reasonable notice was given prior o the contract being made. 19 What constitutes “reasonable notice” is a question of the facts. 21 20 However, as stated before, the general principle is that a clause must have been incorporated before or at the time the contract came into effect – eBay International GAG v Creative Festival Entertainment Pity Ltd (2006). Thus in the hotel room came too late as it was not present at the front desk where the contract was made.
Where there are unusual or onerous clauses, greater notice is expected – Lord Denying in Spurning v Bradshaw (1956) stated that some exclusion clauses “need to be printed in red ink on he face of the document with a red hand pointing to it before the notice could be held sufficient”. 23 In the given case between Vincent and Claude, the clause would not be considered onerous and therefore displaying the sign “on the counter of Claude”s sales area” should be considered sufficient notice. As a result, Vincent will be bound by the clause and Claude will effectively be protected.
However this claim of sufficient notice is arguable and again the answer lies in the facts of the situation. – Was the sign too small for sufficient notice of the clause? , Was it placed in a readily visible area on the enter? , was the writing on the sign legible?. 24 These facts are essential in confirming that there was sufficient notice, however, despite the unlikely possibilities that the sign did not adequately notify, it should not be ruled out. However, the concept of notice from previous dealings implies reasonable notice was given by Claude.
In the case of Bulimia New Ferry Co Ltd v Robertson (1906), it was regarded that the customer, being a regular client of the company, had been given ample notice of the exclusion clause displayed on the sign. 26 25 Similarly in the case Spurning Ltd v Bradshaw (1956), the courts held that whether the notice was ever read or understood is irrelevant, it is enough to show that they ought to have known about the clause is more than enough. So, are Vincent”s trips to Claude”s store – 2 times a week for 2 years – considered regular for the purpose of reasonable notice?
A reasonable person would regard his dealings with Claude as consistent and regular hence advocating that reasonable notice was given by Claude and as such has effectively incorporated it into the contract – whether Vincent ever read the sign is irrelevant. 27 4 Interpretation Now, given that the exclusion clause was validly incorporated, Vincent can only rely on proving that these words were insufficient in excluding liability of Claude”s breach. Interpretation of the clause. 28 To do this, Vincent needs to consider the construction and In interpreting a clause, numerous approaches have been established by precedent cases. Today”s society; 0 0 0 Contra Procurement Rule The four corners” rule Interpretation according to the express agreement The following are approaches relatively more relevant to the case between Vincent and Claude but also noninsured as prominent in In the case of Darlington Futures Ltd v Dolce Australia Ltd (1986), the High Court construed “the clause according to its natural and ordinary meaning read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract”. 0 28 However should the terms be ambiguous 29 and unclear, it will be read against the party relying on the clause, “giving it the narrowest possible meaning “. White v John Warwick & Co Ltd (1953), contra prominent was applied. Thus in Accordingly, Claude”s exclusion clause should be read according to its “natural and ordinary meaning” with the exception of any ambiguity. 31 The clause: “Claude is not liable for any loss or damage caused by the paint, regardless of how much loss or damage may be caused” does not appear to be ambiguous in nature. However, it explicitly limits the exemption to him and any damages arising from the paint.