These are the sources and citations used to research Contract Law The exclusion clause. This bibliography was generated on Cite This For Me on
In-text: ("Exclusion And Limiting Clauses | Contract Law | Custom Essays")
Your Bibliography: "Exclusion And Limiting Clauses | Contract Law | Custom Essays." Lawteacher.net. N.p., 2015. Web. 10 Jan. 2015.
Your Bibliography: Macdonald, Elizabeth. "Incorporation Of Contract Terms By A ‘Consistent Course Of Dealing’." Wileyonlinelibrary.com. N.p., 2006. Web. 10 Jan. 2015.
In-text: (Phillips V Hyland Phillips v Hyland  1 WLR 659 Court of Appeal The claimant (Phillips) hired a JCB excavator from Hampstead Plant Hire. Under the contract the claimant had to have a driver provided by Hampstead. The contract also contained a clause stating that the driver became the servant of the hirer which would therefore negate Hampstead’s liability arising from the negligence of the driver. The driver (Hyland) crashed the JCB into a building owned by the claimant causing extensive damage. The Court of Appeal held that the term acted as an exclusion clause and was unreasonable because: 1. the contract was entered into at short notice 2. The claimant was given little opportunity to familiarise himself with the term 3. The claimant was forced into a take it or leave it situation as had no choice but to accept the driver. 4. There was little opportunity to arrange own insurance cover 5. The claimant had no choice in the selection of driver or to assess their qualifications or suitability to do the job.)
Your Bibliography: Phillips V Hyland. Print.
In-text: (Photo Production Ltd V Securicor Transport Ltd Catchwords & Digest CONTRACT - IMPOSSIBILITY AND MISTAKE - SUBSEQUENT IMPOSSIBILITY AND FRUSTRATION - IMPOSSIBILITY ARISING SUBSEQUENT TO CONTRACT - DESTRUCTION OR FAILURE OF THING - OTHER CASES - FUNDAMENTAL BREACH — EXCEPTION CLAUSE — DEFENDANTS CONTRACTING TO GUARD FACTORY AGAINST FIRE — IN FACT CAUSING FIRE WHICH DESTROYED FACTORY The plaintiffs, a company which owned a factory, entered into a contract with the defendants, a security company, by which the defendants were to provide security services at the factory, including night patrols. While carrying out a night patrol at the factory an employee of the defendants deliberately lit a small fire which got out of control. The factory and stock inside, together valued at £615,000, were completely destroyed. The plaintiffs sued the defendants for damages on the ground that they were liable for the act of their employee. The defendants pleaded, inter alia, an exception clause in the contract, to the effect that ‘under no circumstances’ were the defendants to be ‘responsible for any injurious act or default by any employee ... unless such act or default could have been foreseen and avoided by the exercise of due diligence on the part of the [defendants] as his employer; nor, in any event, [were the defendants to] be held responsible for ... any loss suffered by the [plaintiffs] through ... fire or any other cause, except in so far as such loss [was] solely attributable to the negligence of the [defendants'] employees acting within the course of their employment ...’ No negligence was alleged against the defendants for employing the employee. The trial judge held that the defendants were entitled to rely on the exception clause. The Court of Appeal reversed his decision, holding that there had been a fundamental breach of the contract by the defendants which precluded them from relying on the exception clause. The defendants appealed to the House of Lords: Held the appeal would be allowed for the following reasons: (i) There was no rule of law by which an exception clause in a contract could be eliminated from a consideration of the parties' position when there was a breach of contract (whether fundamental or not) or by which an exception clause could be deprived of effect regardless of the terms of the contract, because the parties were free to agree to whatever exclusion or modification of their obligations they chose and therefore the question whether an exception clause applied when there was a fundamental breach, breach of a fundamental term or any other breach turned on the construction of the whole of the contract, including any exception clauses, and because (per Lord Diplock) the parties were free to reject or modify by express words both their primary obligations to do that which they had promised and also any secondary obligations to pay damages arising on breach of a primary obligation. (ii) Although the defendants were in breach of their implied obligation to operate their service with due and proper regard to the safety and security of the plaintiffs' premises, the exception clause was clear and unambiguous and protected the defendants from liability. Per curiam: (i) In commercial matters generally, when the parties are not of unequal bargaining power and when the risks are normally borne by insurance, the parties should be left free to apportion the risks as they think fit, having regard to difficulties of deciding at what point the breach in fact becomes fundamental and the date at which the termination is to be fixed. (ii) Much of the difficulty regarding the ‘termination’ of a contract and its effect on the plaintiffs claim for damages arises from uncertain or inconsistent terminology; in particular (per Lord Wilberforce) the use of ‘rescission’ as an equivalent for discharge, though justifiable in some contexts, may lead to confusion in others, and (per Lord Diplock) the expression ‘fundamental breach’ should be confined to an event resulting from the failure by one party to perform a primary obligation which has the effect of depriving the other party of substantially the whole benefit which it was the intention of the parties that he should obtain from the contract, so that the party not in default may elect to put an end to all primary obligations of both parties remaining unperformed, while ‘breach of condition’ should be confined to the situation where the contracting parties have agreed, whether by express words or by implication of law, that any failure by one party to perform a particular primary obligation irrespective of the gravity of the event that has in fact resulted from the breach shall entitle the other party to elect to put an end to all primary obligations of both parties remaining unperformed.)
Your Bibliography: Photo Production Ltd V Securicor Transport Ltd. Print.
In-text: (Spurling (J) Ltd V Bradshaw In June 1953 defendant bought eight barrels of orange juice and sent them to plaintiffs, who carried on business as warehousemen, to be stored. A little later plaintiffs sent defendant, a ‘landing account’ acknowledging receipt of the goods and stating ‘The company’s conditions as printed on the back hereof cover the goods held in accordance with this notice. Goods will be insured if you instruct us accordingly; otherwise they are not insured.’ On the back of the landing account there were ‘Contract conditions’ and many lines of small print including the following: ‘We will not in any circumstances when acting either as warehousemen . . . or in any other capacity, be liable for any loss, damage or detention howsoever, whensoever, or wheresoever occasioned in respect of any goods entrusted to or carried or handled by us in the course of our business, even when such loss, damage or detention may have been occasioned by the negligence, wrongful act or default of ourselves or our servants or agents ...’ On the same date plaintiffs sent defendant an invoice for £4 storage fees on which there appeared the following note: ‘All goods are handled by us in accordance with the conditions as over and warehoused at owner’s risk and not insured unless specially instructed’. There were no conditions ‘as over’. Defendant paid the £4 but subsequently fell into arrear on these and other goods. On 9 March 1954, plaintiffs sent him an account for the balance due and on 12 March, defendant issued a delivery order directed to plaintiffs in favour of one T who duly collected the eight barrels, which were then in bad condition. Defendant made no written complaint at that time or for several months thereafter in respect of the condition of the barrels. Plaintiffs issued a writ claiming the storage moneys due to them and defendant counterclaimed for damages alleging that plaintiffs either were in breach of an implied term of the contract of bailment to take reasonable care of the barrels of orange juice or were guilty of negligence in the storage. Plaintiffs denied negligence and also relied on the exempting condition printed on the back of the landing account as exempting them from liability for any negligence. At the trial of the action, the counterclaim being the only matter in dispute, defendant gave evidence to the effect that he had received many landing accounts from plaintiffs in respect of other goods but that he had never read the conditions printed on the back of the accounts, and he contended that the exempting condition was not part of his contract with plaintiffs: Held (1) having regard to the reference to the conditions contained in the landing account, to the mention on the invoice that the goods would be at owner’s risk and to the course of business between and conduct of the parties, defendant had sufficient notice of the conditions and they formed part of the contract of bailment; (2) although an exempting clause, such as that contained in the conditions printed on the landing account, availed a party to a contract only when he was carrying out the contract and would not avail him if he were deviating from it or were in breach of a term which went to the root of the contract, yet, since defendant’s counterclaim against plaintiffs was based on negligence but nothing more, the exempting clause protected them and the counterclaim failed.)
Your Bibliography: Spurling (J) Ltd V Bradshaw. Print.
In-text: (Thornton V Shoe Lane Parking A customer, who receives from an automatic machine a ticket stated to be issued subject to conditions, is only bound by them if reasonably sufficient steps have been taken to bring them to his notice. Per curiam: The nature of the intended exemption is a factor to be taken into account in deciding as to the reasonableness of what has been done to bring it to the other party's notice. T drove his car into a new automatic car park where he had never been before. A notice outside gave the charges and stated that all cars were "parked at owner's risk." A traffic light on the entrance lane showed red and a machine produced a ticket when the car stopped beside it. T took this and, the light having turned green, drove into the garage where the car was parked. On returning to collect it there was an accident in which he was injured. In his action against the garage for damages the garage contended inter alia that the ticket incorporated a condition exempting them from liability. The ticket stated the car's time of arrival and that it was to be presented when the car was claimed. In the bottom left-hand corner in small print it was said to be "issued subject to conditions . . . displayed on the premises." On a pillar opposite the ticket machine were displayed eight lengthy conditions, one of which stated that the garage owners were not responsible for injury to a customer. On appeal by the garage against the award of damages to T, held, dismissing the appeal, that, since T did not know of the exemption condition and the garage had not done what was reasonably sufficient to bring it to his notice, it did not exempt them from liability. (Dicta of Mellish L.J. in Parker v South Eastern Railway Co (1877) 2 C.P.D. 416 applied, and of Lord Hodson in McCutcheon v David MacBrayne Ltd  1 W.L.R. 125 applied)
Your Bibliography: Thornton V Shoe Lane Parking. 1970. Print.
In-text: ("Unfair Contract Terms Act And Consumer Regulations")
Your Bibliography: "Unfair Contract Terms Act And Consumer Regulations." E-lawresources.co.uk. Web. 10 Jan. 2015.
10,587 students joined last month!