Exclusion Clause in the Contract, Consideration, Promissory Estoppel - Essay Example

Questions and Answers Business Law 1 3. Negligence Before we set up a decision in the given cases, firstly, some discussions are to be made in the light of the concept of negligence and its elements. Negligence is a tort which targets a breach of duty by one person to another .There are some elements to constitute the aspect of negligence. They are, a) A duty of care b) Breach of that duty c) Breach cause harm in fact d) Breach being proximate or not too remote a cause in law A due care is a legal obligation imposed on an individual requiring that they exercise a reasonable standard of care while performing any act that could forceebly harm others. But here it is to be remembered that the burden of proof lies upon the claimant/plaintiff that he/she was owed a duty of care by the defendant and their had been breach of that duty. In well known case Donogue VS Stevenson * the Court decided that the manufacturer is liable for the act done because everybody owes a duty of reasonable care to their neighbour.In this case Mrs. Donogue made a valid claim that her continuous illness is due to the consumption of drink in which the decomposed snail was found and it was due to the negligence of manufacturer Mr. Stevenson. Now let’s discuss how the above said principles are applicable to the given cases and also we‘ll advise the parties to the case that how can they resort to these principles to get the benefit of the Law. Anna’s case Since the maintaining the activities of the park in a proper manner are the first and foremost duty of the local council as the maintainer of the park, it owes some duty towards others. The local council must take reasonable standard of care regarding the activities of the park so that it should not cause any harm to the passersby. In the famous case Boulton VS Stone** it was held that defendant should take reasonable care to avoid injuries. Anna can sue the local council as the defendant for the negligence in the light of above principles and she is entitled to get compensation from the local council. ------------------------------------------------------------------------------------------------- *Donogue VS Stevenson 1932 ,A.C 532 1932 S.C 3 ** Boulton VS Stone 2 Miss. Marple’s case The principles regarding the negligence discussed above are applicable here also. The gardner had to take reasonable care in arranging the flower pot in the right side of the path so that harm to the others should be avoided .Here it is obvious that the gardner has done the breach of duty by arranging the pots in the wrong side, hence Mrs.Marple can file a case against the gardner as defendant and entitled to get compensation from him for the injury caused to her. Mrs.Turtle’s Case It is apparent from above discussions that Mrs. Turtle can sue the Local council and the doctor as defendants and they are liable to pay off the damages. As said before the local council had to exercise due cares regarding the maintenance of those play amenities in the park as same way in the activities of the park. Mrs. Turtle can sue the doctor as there was a breach of duty on the part of doctor. If he attended Gemma in appropriate manner, Gemma would be alright. The doctor could do some other arrangements to get X-ray done .Instead of this, he just asked the nurse to bandage Gemma’s injured ankle and consequently she had permanent limb. From above it is clear that a person is liable to pay off damages if he is negligent in doing something and the same leads harm to others. But the plaintiff can not always believe in ‘res ipsa loquiter’-the thing speaks for itself. The burden of proof always lies on the plaintiff that there is breach of duty. 4. Exclusion Clauses To decide whether the plaintiff Naomi is entitled to the compensation for the misconduct of the defendant –Miracle Image ,the beauty parlour First we shall discuss the famous case Olley VS Mac borough Co.* In this case the plaintiff and his wife hired a room at hotel for seven days .After paying the advance when they entered in the room there was a notice on its wall and it reads “proprietors will not held themselves responsible for articles lost or stolen unless handed to the manager or safe custody.” Unfortunately on account of the negligence of the hotel staff property was stolen .ON the suit being filed by the plaintiff the Court held that the notice was not the part of the contract and proprietors are liable to compensate the plaintiff. ----------------------------------------------------------------------------------------------------- *Olley Vs Mac borough 1949 1 K.B 532 3 Now we will come to the point. In this case it is clear that Naomi had specifically mentioned everything about her scalp and importance of her manicure (Naomi is a model for hand commercial) to the hair stylist, manicurist etc and they had accepted Naomi’s demands also. So the Miracle image employees are bound to do their work with their utmost care. But here the model suffered a huge damage due to the improper treatment of the beauty parlour employees. Over and above, Miracle image resorted their claim on the basis of notice they fixed in the beauty parlour in which they held not responsible for any damage caused to the clients. Miracle image argued that the notice comes under the Exclusion clause in contract. Now the question arises whether the exclusion clause is incorporated in contract in common law or not. Exclusion Clause in the Contract Exclusion clause in the contract states that “the clause recognizes a potential breach of contract and then excuses the liability or the breach”. But the clause is constructed in such a way that it includes the reasonable care to perform duties are one of the parties. There are two type of liabilities arises in this regard. 1. Liability arises due to a state of affairs without the parties at breach necessarily being at fault – Strict liability 2. Liability arises due to fault- Negligence Here, though the Miracle image argues that they are not liable for the injury and damages caused to the model as the notice is the part of this exclusion clause. But it can be defended by exploring the scope of section 2(1) of Unfair Contract Terms Act 1977 .Sec. 2(1) of this act clearly states that no one acting the course of business can exclude or restrict his liability in negligence for death or personal injury by means of a term in the contract or by way of notice .Moreover the Sec. 14(2) of Sales of Goods Act of 1979 states that where the seller sells the goods in the course of business ,there is a implied condition that the goods supplied under the contract are of merchantable quality, except that there is no such condition- (a) as regards defects specifically drawn to the buyers attention before the contract is made- or (b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal. Now it is obvious that Naomi can make a valid claim against the Miracle image Beauty parlour as the defendant, in the strength of above said laws. Naomi can sue the beauty parlour for the negligent acts of the hairstylist ( now she has permanent hair falling due to the usage of the wrong product ), for the 4 negligence of the manicurist who caused her infected finger and there by cancellation of modeling assignments and also for using cheap quality of artificial nails . 5. Consideration, Promissory Estoppel “Ex nudo pacto non avitio actio”- An agreement without a consideration is a bare promise and is not binding on the parties. Consideration is the price paid by the promise for the obligation of the promiser. The term is used in the sense of “quid pro quo”- something in return. In the case Currie VS Misa* the term consideration is defined in whole aspect. it is defined here as “ some right ,interest ,profit accruing to one party or for some forbearance ,detriment ,loss or responsibility given or under taken by other. Thus consideration need not be a benefit to the promiser. If the promise has suffered some loss or detriment, it will be taken as a sufficient consideration for the promiser to fulfill his promise. In the given case the agreement between Mr. Wheeler and Mr. Stubbs is valid since there consideration exists. .Here the question arises on the validity of performance of part payment and also we’ll examine whether the claims of Mr. Wheeler is maintainable or not. If one of the parties to the contract fulfils only part of his obligation, it is a defense to say that this breach was acceptable to the other party. Moreover, the acceptability may be signaled by conduct, rather than explicitly. In this case, the party in breach may apply for a Quantum Merit (A payment for work completed under the terms of a breached contract. Such an award may be made by the court if the contract is partially) fulfilled award for the work completed. Mr. Wheeler can claim the balance amount on the above mentioned clause. . The doctrine of part performance is clearly explained in pinnel’s case (Penny Vs Core)** In the Pinnel’s case the plaintiff sued the defendant for sum of eight 10s.The defense was based on the fact that the defendant had, at the plaintiff’s request tendered five 2s 2d before the debt was due, which the plaintiff had accepted in full satisfaction for the debt. The rule in Pinnel’s case was “payment of a lesser sum on the day in satisfaction of a greater cannot be any satisfaction for the whole”.ie the rule itself says that the debt was paid before the date of satisfaction, which was considered good consideration. --------------------------------------------------------------------------------------------------- *Currie Vs Misa 1875 L.R 10 Exch. 153 **Penny Vs Core ( Pinnel’s case) 1602 510 rep.1179 5 In the same way in Foakes VS Beer *it was held that the payment of a lesser sum on the day i.e. on or after the due date of a money debt can not be any satisfaction of the whole. On the basis of above clauses and rulings Mr. Wheeler can approach the Court for seeking justice. Contrary to this Mr. Stubbs can also rise the defense on the basis of the doctrine of promissory estoppel . Doctrine of promissory estoppel is a legal doctrine that may be used in certain situations to prevent a person from relying upon certain rights or upon a set of facts i.e. words said or action performed which is different from an earlier set of facts. The doctrine is mentioned in Central London Property Trust VS High Trees Home.**In this case it was held that the full rent was payable from the time that the flat become fully occupied in mid 1945 but stated obiter that if Central London had tried to claim for the full rent from 1940 onwards, they would not have been able to. In the given case later Mr. Stubbs approached Mr. Wheeler and both are agreed orally and Mr. Stubbs paid off 3500 in default of 1000 payment. Mr.Stubbs can defend on the above said doctrine that he relied on the words of Mr.Wheeler and paid 3500 balance. From above discussion it can be concluded that Mr.wheeler and Mr.Stubbs has valid claims to have the benefit of the Law. 6. Offer and Acceptance Before we decide whether Mr.green has a valid contract with Mrs.Good .firstly we ‘ll go through the concept of offer and acceptance, mode of communications in the contract and effect of counter offer. An offer is an indication by one person ("offeror") to another ("offeree") of the offerors willingness to contract on certain terms without further negotiations. A contract is then formed if there is express or implied agreement. A contract is said to come into existence when acceptance of an offer has been communicated to the offeror by the offeree. There are several requirements dealing with the communication of offer and acceptance: they are, ------------------------------------------------------------------------------------------------- *Foakes VS Bear 1884 9 A.C 605 ** High Trees case 1947 K.B 130 6 1. An offer may be express or implied 2. An offer must contemplate to give rise to legal consequences and be capable of creating legal relations. 3. The terms of the offer must be certain and not loose or vague. 4. An invitation to offer is not an offer 5. an offer must be communicated to offeree. 6. The acceptance must be communicated 7. An offeree is not bound if another person accepts the offer on his behalf without his authorization 8. It may be implied from the construction of the contract that the offeror has dispensed with the requirement of communication of acceptance. 9. If the offer specifies a method of acceptance (such as by post or fax), you must accept it using a method that is no less effective than the method specified. 10.Silence cannot be construed as acceptance Mode of communication and its legal effect An offer is effective only when it is communicated to offeree. Until the offer is made known to the offeree, there can be no acceptance and no contract. In Adams Vs Lindsell* the scope of communication in the contract is given. On 2 September, the defendants wrote to the plaintiffs offering to sell them certain fleeces of wool and requiring an answer in the course of post. The defendants misdirected the letter so that the plaintiffs did not receive it until 5 September. The plaintiffs posted their acceptance on the same day but it was not received until 9 September. Meanwhile, on 8 September, the defendants, not having received an answer by 7 September as they have expected, sold the wool to someone else. It was held that there was a contract on 5 September when the plaintiffs posted their acceptance.. Counter offer If the offeree rejects the offer, the offer has been destroyed and cannot be accepted at a future time. A case illustrative of this is Hyde v. Wrench **where in response to an offer to sell an estate at a certain price, the plaintiff made an offer to buy at a lower price. This offer was refused and subsequently, the plaintiffs sought to accept the initial offer. It was held that no contract was made as the initial offer did not exist at the time that the plaintiff tried to accept it, the offer having been revoked by the counter offer. ------------------------------------------------------------------------------------------------------ * Adams Vs Lindsell 106 E.R 250 (KB) ** Hyde VS Wrench (1840) 49 E.R 132 7 In the light of above legal points let’s discuss about the contract between Mr. Green and Miss. Good. Firstly we’ll consider the whether the leaf let is an invitation to treat. In the case of an ‘invitation to receive offer ‘the person sending out the invitation does not make an offer but only invites the other party to make an offer. So the leaflet itself does not make an offer. Secondly .Miss .Good made an offer for 50 per kilo for 50 kilo or more but instead of it Mr. Green made an another counter that 30 kilos at 50 per kilo and delivery charge also. AS mentioned in Hyde VS Wrench we can say there is no validity in offer made by Mr.Green till the offer made by Miss. Good exists. But the vague response of Miss. Good was taken as the acceptance here. One of the requirement of the acceptance is it should be communicated. But here the acceptance was not properly communicated as Miss. Good murmured something and Mr. Green did not hear this properly. So it can not be said that there was a contract. Later Mr.Green left a message of cancellation in the answer machine of Miss.Good the same was not attended . Since there was no such initial contract between Mr.Green and Miss. Good exists the subsequent actions of the parties are not relevant here.But for the argument sake we can argue that message was not attended , as Miss. Good was not in the shop .But meanwhile Mr. wheeler must have agreed to sell the articles to the Supermarket. So thre can not be a contract between Miss.Good and Mr.Green. . ******************************* References 1. Anson’s Law of Contract ,edited by Gues,A.G,Oxford University Press ,London 2. Cheshire, G.C and Fifoot, C.H , Law of Contract Butterworths, London 3. Sale of Goods Act 1979 4. Unfair Contract Terms Act 1977 Read More

 

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