Law Cases Essay

Our whole economy is based on the license of individuals to nail down and a system of rightfulnesss that enforces slews broadly entered into. But a circumstances of people may not be cognisant of what are the necessity elements required to make an enforceable make . Recently I was asked if a contract not in writing is binding . We are so accustomed to seeing contracts in writing that m some(prenominal) people expect that a contract must be in writing (and lengthy) in the first place it is enforceable . To form a contract , there are no particular words that must be used by the parties . standd , there must be an twirl by one locating and an word sense of the offer by the person to whom the offer was made . Without twain an offer and an acceptance , there can be no consensus ad idem or a meeting of the minds which is essential to form a contract. No conditions can be attached to the acceptance and the borders of the offer cannot be changed. If conditions are attache d or terms are changed, the parties are hardly negotiating and may ultimately reach agreement on the terms of the contract. For example, if your receipt is that you will pay me $5.00 to tell apart the lawn but I must cut again next month for the same price, there is no contract. You make water made a counter offer which I am free to accept or reject. Likewise, the acceptance cannot be conditional on nearly other events. In the same way the Lady Gaga has sour her concert at the O2 . blight a local entrepreneur has got calciferol island of Jerseys and he has asked mike Baldwin a local shirt maker , if it is realizable than is he able to print Lady Gaga on the trend of the T-shirt . Mike agrees to do it but when hassle went there for gathering he saw that the word print on all the T-shirt was Lad Gaga and even the ink of the print deterioration the secular of the T-shirt which is not good . When scourge makes complain about it, Mike told him to refer the contract which is placed on the front door that constraining indebtedness for damaged items to 20% of the value . jibe to this generally a article will incorporated if the party has given logical notice . These was all the way illustrated in Thompson v LMS Railway . Here the claimant was injured whilst stepping off a train .The rail line fraternity displayed prominent notices on the platforms excluding obligation ain injury and damage to property due to negligence . The tickets likewise say they were subject to terms and conditions displayed on the platform . The claimant was illiterate and could not order the signs. She vied that the censure article was not incorporated into the contract as the railway comp some(prenominal) had not brought the article to her attention at the time the contract was made. The clause was incorporated . There is only a requirement to bring in reasonable steps to bring the clause to the attention of a reasonable person. There was no duty to ensure that e v ery(prenominal) traveller was aware of the clause . The claimant was therefore unsuccessful in her claim for damages. (accessed on e-lawresouces .co.uk , 5/12/12 )Clearly this objective bear witness will very according to the facts of eagh skid but there are a weigh of factors that are applicable in determining tenability in this consideration , one more(prenominal) thing is required and that is degree of notice . devastate had a small notice at the front door which is terminal point clause and it is stated therefor that less onerous than excommunication clause . It may be common notice of trade because the actual surface of the notice may be more significant .This has been proved by stating some more study laws such as , Thornton v apparel Lane Parking , The claimant was injured in a car place green partly due to the suspects negligence . The claimant was given a ticket on entering the car park novelr putting money into a machine . The ticket stated the contract of put was subject to terms and conditions which were displayed on the inside of the car park . 1 of the terms excluded liability for personal injuries arising through negligence.The question for the court was whether the term was incorporated into the contract ie had the defendant brought it to the attention of the claimant before or at the time the contract was made . This question depended upon where the offer and acceptance took place in relation to the machine . The machine itself constituted the offer . The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place and therefore the clause was not incorporated into the contract. According to previous decision of Spurling v Bradshaw , it is stated that some clauses are to be printed in red ink and with the red hand arrow pointed towards the notice, which could be held in a sufficient way . This reason was further been support by Court of Appeal . Another relevant factor for th e provokes present question of reasonableness that is the timing of the notice to be handed .The most effective time for handing the notice is before the contract has been made otherwise it is too late . This has been made abundantly take a shit in cases such as Olley v Marlborough Court Hotel and Thornton v horseshoe Lane Parking . Thats the reason that if Harry had contracted in advance of arriving at the counter , the notice would be too late . further if he arrived to complete the agreement then the clause could be part of the contract . These states that even if the regulateation clause is incorporated into the contract than it does not mean that it is an effective clause . The law has sought to defend vulnerable parties from claim clauses . This protection has take two forms - Judicial mark off through the common law and statutory control since 1977 . The juridic go on is known as the contra proferentum rule. According to this , if there is any ambiguity in the wordin g than that is strictly constructed against the party which seeking to believe on it . limitation clause are construed in a more liberal mood as they are not as harsh as exclusion clauses .In Ailsa Craig Fishing v Melvern Lord Fraser reffered to this strict principle when they applied , A contract between existed between Securicor and Aberdeen Fishing Vessel Owners Association whereby Securicor were to provide security c everyplace in the harbour where the claimants vessels were moored . As a result of negligence and breach of contract the claimants vessels sunk. The contract contained a clause which provided that in the event of negligence or breach , Securicor would not be liable for any amount exceeding 1,000 in any one claim and that it would not be liable for more than 10,000 in any twelve month period . The House of Lords held that where the clause limits liability rather than excludes liability altogether the courts should apply the natural meaning of the clause and not be too eager to find ambiguity .So the court would be more lenient in their interpretation of Harrys clause since it limits liability . If Harrys clause is sort out and unambiguous there would be no scope for application of the judicial control system . As in certain circumstances the clause can even cover a fundamental breach as in Photo Productions v Securicor . According to the Unfair engagement monetary value Act 1977, the clause of Harry must be satisfactory . (accessed on Ailsa Craig angle v Malvern Fishing (1983) . Here the Act clearly applies the Harrys clause where a business seeks to exclude or limit liability . Under function 2(2) clauses attempting to exclude or limit liability for damaged property caused by negligence are subject to a test of reasonableness . The test is in section 11(1) and basically states that a clause is reasonable if in all surrounding circumstances of the case , than it is reasonable .This circular definition gives the footrace judge a readin ess to decide each case on its own facts . nether section 11(5) the burden of proving that the clause is reasonable is on the party seeking to rely on it .So Harry must prove that the clause is reasonable . arm 11(4 ) states two factors that the court must consider when determining the reasonableness of a limitation clause .Firstly the resource of party rely on the clause and also the question of whether he is in a order to insure against the attempt of loss . Harrys has the resource of pay making business as opposed to the resources of the community theatre and would also be able to insure against the risk of such losses . after(prenominal) determining the reasonableness of the clause which attempts to exempt liability implied in contracts for the gross revenue of goods , this kind of act must be consider in court. However the courts such as House of Lords states certain factors in two contrasting case laws , they are such as smith v shrub down to the county court in Woodma n v Photo spate process . These two case law states that some of the factors of Schedule 2 are considered as case of negligence. According to the case law of Smith v provide , it states that a survey report of the claimants home carried out by the defendant failed to advise on some structural damage to the property which resulted in the chimney breast collapsing.There was no contractual relationship between the claimant and defendant as the mortgage company arranged the survey and the claimant made payment to the mortgage company . The contract between the claimant and the mortgage company contained a clause exempting the surveyor from liability . In considering if such a clause was reasonable under the Unfair Contract Terms Act 1977 , the court took into account the fact that it was a paltryer-ranking house to be used as the family home and concluded that it was an untenable clause and therefore ineffective. The House of Lords held that it might be reasonable for a surveyor to exclude liability if the property was of higher value or to be used for investment or business purposes . According to this case law , they are generally relevant to question of reasonableness , here on of the factor is related to the bargaining strengths of the parties . (accessed on Smith v Eric Bush (1990) , 5/12/12) . In the case law of Woodman v Photo Trade Processing , Woodman sent wedding photographs to PTP for bear upon .The lead was sent in an envelope which contained , printed on the outside , an exemption clause limiting liability to a replacement film . The film was lost due to negligence (it would now be considered as hardship to exercise reasonable skill and care under s13 of the Supply of Goods and function Act 1982). W sued. The court decided that this limitation on liability was (in these circumstances) unreasonable, since it was due to negligence that the film was lost , and the consumer had no election over the contract. Since this decision , most postal f ilm companies offer a choice of paying extra for insurance . Even with this option , there fetch been cases where these companies have been held to be acting unreasonably , because the clause has tended to be dark , in small print on the envelope. (accessed on economic uprightness .co.uk , 5/12/12 ) .According to these two case laws, it is relevant that Harry and Mike are two businesses and would appear to have equation of bargaining strengths. This strength can be used as an rivalry for both the customer and a business or even for any small business or multinational. Another relevant factor would be whether Mikes knew or ought to known of the clause, perhaps from the trade . The trial judge suggested that the clause would be more reasonable if the customer had a choice from a two tier service, one will low costs but a high risk , and one with more protection but at a premium . The basic topic from this is logical , and if Harry does in fact offer such a two tier service it wou ld go in his favour . In Phillips v Hyland Slade LJ , it demonstrates the put to death of the Unfair contract terms act (1977) .The plaintiff take away an digger and driver from the defendant the driver negligently drove the excavator into the plaintiffs building , causing damage . When sued for damages , the defendant relied on an exclusion clause that disclaimed liability for negligent actions of drivers . The plaintiff argued that the exclusion clause was inadmissible under the UCTA , which states that a clause disclaiming liability for damage resulting from negligence must be shown to be reasonable . The defendants tried to argue that the clause at issue was a duty-defining clause , and not an exclusion clause at all . The court , acting in the bosom of the UCTA , deemed that the clause was defensive , not duty-defining , and therefore an exclusion clause under the Act . The defendant also claimed that the clause was reasonable , and could therefore be upheld even if it wer e construed as an exclusion clause .The court held that the plaintiff , which chartered excavators only rarely , was not in a position to infer the risk involved in doing so the defendants , however , were operating in their main line of business , and should have been able to assess the risk accurately and take insurance to cover it . The clause was therefore deemed partial and struck out .(accessed on lawiki.org/index.php , 5/12/12) . This application of the test of reasonableness turns on the facts of each case and will not be treated as binding precedent . So if the cause if alike(p) to Harrys than he had satisfaction of previous test of reasonableness , that is not to be taken as an indication of the validity of Harrys clause . At the last it is clearly stated that this case is also turns on its own facts .REFERENCE -* Ailsa Craig fishing v Malvern fishing (1983) , http//www.e-lawresources.co.uk/cases/Ailsa-Craig-fishing-v-Malvern-fishing.php , 5/12/12 . * Image of leadersh ip and management , http//www.transitions coach service.co.uk/page/1lko/about_us_ , 5/12/12. * Philips v Hyland Slade LJ (1987) , http//lawiki.org/index .php?title= Philips_ products_v_hyland_(1987)&action=edit ,5/12/12 . * Smith v Eric Bush (1990) 1 AC 831 , http//www.e-lawresources.co.uk/Smith-v-Eric-Bush.php ,5/12/12 . * Thompson v London ,Midland and Scotland Railway co , http//www.e-lawresources.co.uk/Thompson-v-London-Midland-and-Scotland-Railway-co.php , 5/12/12) . * Woodman v Photo Trade Processing 1981 , http//www.economic-truth.co.uk/?page_id=148 ,5/12/12 .