Corporations and the Law, the Exclusion Clause - Assignment Example

CORPORATION AND THE LAW Author’s name Institutional affiliation Instructor Department City/State Course Study level Corporations and the Law Question 1 It is universally accepted that goods and services are sold, bought and moved to a contract while at the same time, employees are also hired because of a contract (Appleman Appleman and Holmes 2015 33). In simple terms, contracts represent the foundation of most activities that revolve around commercial business. A contract can be acknowledged as an agreement that is postulated between two parties, members, group’s corporations or individuals that can be enforced by the courts (Bhananker et al 2006 230). In other words, the contract law is very different from other forms of contract because the people involved need to act by the principles of the law to establish their duties and rights that can be enforced by the law. In this case, the contract between CSR and its customers is valid as soon as their customers press the accepted button a confirmation that they have read and understood the terms and conditions of their association. For any contract to be legit and binding, the parties involved will require to be able to meet certain requirements that are stipulated by the law. As much as the binding activities are not many, it is a must that these binding elements be met before any contract is considered enforceable under the law (Bhananker et al 2006 230). First, for any contract to be valid, it is universally presumed that the contracting individuals must first possess an intention of entering into a legally binding contract. In simple terms, if any individual wants to sign a contract that revolves around business related activities, then the other party can be sued if the other party does not at any one point fulfill the provisions in the contract (Appleman Appleman and Holmes 2015 33). For instance, if CSR had indicated in their terms and conditions that they will be held fully responsible for the injuries incurred by the customer then it would have been right for Raj to sue it and claim for compensation for the injuries and damages that he incurred. On the contrary, CSR's terms and conditions of their association indicated that CSR will not be held responsible for any loss or injuries whatsoever which leave Raj with no choice but to be responsible for his medication. However, this presumption can only be rejected if the individuals entering the contract indicate clearly that they have no intentions of entering into a binding contract (Bhananker et al 2006 230). If this was the case, then CSR should have indicated on their terms and conditions template that their association was subject to contract. In this case, this words would mean that the issued terms and conditions template do not necessarily mean that they are entering into a contract with Raj. In such instances, any party that is acting based on the words subject to a contract can decide to end the contract negotiations before agreeing to the contract terms. For instance, if Raj had gone through the terms and conditions and realized that there is a clause in the CSR conditions that he disliked, then he would have had a chance of not completing the online registration and withdraw from associating with CSR at that stage. Therefore, in the case of a conflict, the burden and the weight of the contract lies between the people who wants to rely on the contract, based on this contract, Raj feels the weight (Dong and Zhi-zhong 2008 35). Raj feels the impact of not understanding the terms and conditions of their contract with CSR and ends up being slammed with huge hospital bills. A contract is never valid until the offer of the contract is accepted by the individual to whom the contract offer is addressed. In other words, the acceptance of an offer can sometimes be made in written form or orally (Farber 2008 337). In other circumstances, if the contract requires that the performance and the acceptance of the contract need to be undertaken simultaneously then the contract acceptance can be undertaken by contract. For instance, in this case, when Raj clicked the agree on button on the terms and condition, CSR accepted Raj’s payment without saying anything. However, it is recommended that to ensure the smooth operation of the contract; then the contracting parties should agree and specify the acceptance method (Farber 2008 337). In this case, CSR specified the acceptance method because any customer viewing their online services is required to click the accepted button whenever they read and agree to the terms and conditions on the official website. Another important aspect of this contract element is that, if one party does not agree to some parts of the contract, then that contract is not valid and may result into a counter-offer (Appleman Appleman and Holmes 2015 33). For instance, if Raj had gone through the terms and conditions and recommended some new terms to CSR, then this agreement will, therefore, be classified as a suggestion of a new contract. Consideration in any contract is focused on the individual who made the benefit or promise to confide on the other individual party both which can be determined in economic terms (Gevurtz 2010 66). If in this case CSR had stipulated that they would be held responsible for any injuries caused to their customers, then they would have paid the bill that Raj had incurred at the hospital and any damages that the court would have suggested so long as it is within their remote access. Another important aspect of a contract is the age limit such that any individual who is below 18 are universally accepted as not being liable to enter into contracts (Gevurtz 2010 66). In other words, any form of contract that involve any individuals who are below the legal capacity are neglected or avoidable in such a way that any individual who is trying to obtain protection can try and seek to avoid the liability of contractual (Appleman Appleman and Holmes 2015 35). Since Raj is above the legal capacity required to enter into a contract, then in this regard he can be allowed to seek protection from the contract. However, because CSR clearly stated that any form of injuries caused due to an individual’s negligence won’t be their responsibility, then it is clear that he may not be liable for any monetary or economic consideration in the wake of the injuries caused at CSR. Question 2 The exclusion clause is universally accepted as the last option of negligent. Additionally, the exclusion clause tries to be the safeguard or rather a safety net for the contracting party that is stronger but has failed in undertaking their subject matter but wants to try and go around the case unscathed (Lu Potter and Xue 2007 220). In this case, given the fact that this clause tries to exculpate the stronger party in the contract from his responsibility then it can be argued to be a section that hinders or limits any individual for liability breach of agreement contract. For instance, in this situation, Raj is the one seeking compensation for the injuries and the double loss he has incurred regarding employment and school. Moreover, many contracting parties prefer exploiting this clause to avoid being held responsible for breaking or breaching the contract(Lu Potter and Xue 2007 221). Besides, the exclusion clause can be extent as far as excluding any liability completely or might as well just limit or reduce the liability level to a certain extent (Appleman Appleman and Holmes 2015 33). The exemption clauses appear in contracts where the terms and conditions are already set and established in such a way that an individual has an option to either take it or leave it and in the process, there is no chance for negotiation. For instance, the terms and conditions of association with CSR are already stipulated in such a way that the only option that Raj had was to confirm that he had gone through the terms and conditions and understood before pressing the agree on button. In this case, this option can be classified as a take it or leave it a choice because there is no room for negotiation. When a phrase is embedded into a contract that was signed by all parties entering into the contract, then there are every opportunity for questioning whether the embedment or the incorporation into a contract has taken place (Lu Potter and Xue 2007 220). In other words, by providing the exemption clause as stipulated in the contract that was agreed upon and signed by both parties in the contract then the exemption clause will be valid. In such situations, if there is any evidence of misrepresentation or fraud then the courts will have no otherwise but to investigate the situation (Quan-xing and Kun 2008 33). In this situation, the phrase in question exited in the terms and conditions of the contract before even Raj agreed to the terms. Hence, the judgment of this court may only make CSR liable for the injuries and damages caused to Raj if they consider other factors like what humankind can do in such like situations. Unsigned documents or any form of advertisement s can cause so many challenges when it comes to determining if the phrase or the condition is incorporated in the association contract between two parties (Quan-xing and Kun 2008 35). In such situations if the phrase is acknowledged and accepted by both individuals entering the contract then there will be no challenging issue because it will be part and parcel of the contract. In this case, the phrase stipulated by CSR in their terms of the contract was not known to Raj hence, in other words, it can be argued that according to him, this phrase was not part of the contract he signed. In simple terms, after the contract has been signed, then one-party cannot just come out from nowhere and allege that some terms are part of the association contract (Appleman Appleman and Holmes 2015 33). According to the judgment in Scruttons V Midland Silicon (1942) AC 446, this is unacceptable, unethical, and immoral hence making the basis of the contract irrelevant if the terms are injected into the contract at will (Quan-xing and Kun 2008 37). However, in this circumstances, the clause in question existed in the contract terms and conditions, it was not added after Raj had pressed the agree on button hence limiting the chances of Raj’s negligence claim to be successful. All that CSR have to do is to prove that the clause existed in the terms and conditions of their contract before Raj agreed and clicked the accepted button. Incorporation by notice also plays a very crucial role in the negligence case because it may cause a very challenging situation where an individual is bound by the conditions and the terms that have been embedded into the contract but if they would have noticed then they would not have accepted (Schaffer et al 2011 56). For instance, the CSR online booking offers a notice to their customers Raj included that they should accept only if they have read and understood the terms and conditions in the contract (Appleman Appleman and Holmes 2015 33). In this case, this makes Raj’s negligence case against CSR very challenging because the rend hand rule in such instances argues that the more unreasonable the phrase or the term ids then, the more notice pf the term has to be given. In this case, CSR clearly emphasized that the customers should only click the accepted button after reading and understanding the terms very well. Besides, Raj is well educated and therefore the aspect of illiteracy may not be taken into consideration in this aspect. It is universally accepted that any exemption clauses in contracts exclude or limit liability in contracts that revolves around a negligent breach of contract (Schaffer et al 2011 56). In this regard, the terms that limit liability to a particular extent are not taken as serious be the courts with the same level of hostility as the ones that completely exclude liability altogether (Bhananker et al 2006 226). In this case the exclusive clause in the CSR terms and conditions excluded any involvement in the injuries that are caused whatsoever within the CSR environment or even if it is caused by their negligence. Therefore, by transporting Raj to the hospital means that they acted in good faith. Besides, the injuries that Raj experienced were caused by his negligence. First, he ignored reading the terms and conditions stipulated at the online booking website, second, he failed to attend the training that is normally offered by CSR for new guests and novice skies. In this regard, it can be argued that his negligence claim has very low chances of succeeding. Besides, since CSR excluded themselves from being held liable completely, then there are high chances that the court will be stricter in this regard which is also supported by the judgment and the court ruling in McCutcheon V Mac Brayne (1964)1 WKR 125 (Schaffer et al 2011 56) Question 3 Assesment and Evaluation of damages are universally acknowledged as a very extensive area when it comes to business and law (Bhananker et al 2006 230). In other words, it is very technical and complex because it covers a significant civil litigation area where there’s a civil wrong or rather a law infraction. In simple terms, it covers all claims that occur from contracts and torts. Whenever a claim is encompassed in an activity, the claimant or the plaintiff is needed under the law to offer evidence to support the claim and in the process, offer facts that will be employed in the assessment of the damages (Schaffer et al 2011 56). In this case, the extent and many damages that will be issued to Raj depends on the furnished evidence that warrants the damages award. In this regard, the facts that are provided will act as a basis for the damage assessment and the extent of which Raj will be compensated The word damages according to the law means a sum of money that the claimant is awarded as part of the compensation for loss, harm or injury they suffered as a result of the breach of contract or tortuous act committed by the defendants agent or the defendant themselves (Studdert et al 2006 2024). In Awuni v, Waec, the judgment of this case postulated that, by offering the award to the claimant, it was not laying down a rule or a general principle of awarding damages (Appleman Appleman and Holmes 2015 33). In other words, the claimant as far as damages are concerned is entitled to be compensated the full amount of their losses. In our case study since Raj had to pay the hospital medication bill which amounted to approximately $ 5000, he had to walk on crutches and had to stop reporting to work for twenty weeks, then he is entitled to the full compensation of the salary, hospital bill and the cost of obtaining crutches since in establishing the level of damages, the court determines the measure and the extent of the damages and the proximate remoteness of the damages. In other words, the basic aim of offering damages is to try basically and compensate the initial state of the claimant if the injury or damages had not occurred (Studdert et al 2006 2024). If it had occurred, Raj would not have been given the $5000 hospital bill; he would not have walked on crutches, and besides, he would have still reported to work and earned his work wages. However, damages are not given to over-benefit the plaintiff beyond what he has lost which makes it important as well to ensure that the plaintiff does not also get less than what they have lost. For instance, in Borketey v Achinivu & others, the Supreme Court held that the compliant was not only compensation liable for the market value of the taxicab, but also the net revenues that he would have realized of the taxicab remained operational. Additionally, it is important to accept the fact that the damage recovery is guided and limited by the rules of the damage remoteness such that the damages awarded must be within the range of the tortuous act or the contract breach. Since the injuries that Raj sustained occurred within the range of CSR, it is, therefore, important to note that the damage to Raj was contemplated by both Raj’s negligence and the negligence of CSR on their part as well for leaving dustbins on the skiing track during their association. Compensation claims are guided by the remoteness of their occurrence and the contract clauses as well. Apparently, an individual is entitled to claim compensation if an instance or an occurrence in the contract makes them incur losses or experience damage to their normal state. When Raj approached Jess for financial advice, they never signed any agreement of association but rather approached her in a very casual way for advice. In other words, it can be argued that Raj used the connection and the friendship he shared with Jess’s son from school to ask for advice. Judging from Jess response, it can be said that this conversation was less professional, and it did not look like any other professional association or contract. As a result, there was no signing of any contract of an association that can serve as a binding agreement and in the process be the proof that can clearly be the basis of passing judgment. In such instances, the law stipulates that for any individuals to claim for compensation, then they must present evidence and facts that prove that indeed there was a breach of contract as asserted in Olley V Marlborough Court, Thompson v LMS Railway (Quan-xing and Kun 2008 33). The law argues that for any individual to claim compensation from a registered company, then they must be able to provide undisputed evidence that the reason why they incurred losses is because the company failed to honor their contract obligations (Studdert et al 2006 2024). In other words, there must be proof that shows clearly that it is indeed that the financial company that is owned by Jess did not act according to their obligations and duties expected of them. But in this case, Jess offered an open advice which Raj had asked for and in so doing, Jess can be said to have acted according to the obligation required of her as a financial advisor since the choice of investment always remains with the finance owner. Besides, when a company is in liquidation, the law stipulates that the creditors of the company cannot engage in legal proceedings against the company unless they have a written official permission from the official assignee court (Quan-xing and Kun 2008 33). Therefore, in simple terms, the only option Raj has is the provision of evidence that proves that they had agreed with Jess, which was not the case. In such circumstances, the only activity that can save Jess is the presenting of proof that there was an exclusive clause in their discussion which held Jess liable for any losses that he may incur. 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