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In order to advise Adam Co with regard to the enforceability of the exemption clause it will be necessary to firstly consider whether the exemption clause was incorporated into the contract between Adam Co and Burt Co. Secondly, if the clause was successfully incorporated into…
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Download file to see previous pages under Part II of the Supply of Goods and Services Act 1982 (the Act1) and Section 13 the service will be carried out with reasonable care and skill where it is done in the course of business as in the current scenario. Therefore failure to do so entitles Adam to make a claim for breach of contract and damages or alternatively under the law of negligence2which is what Burt Co is purporting to exclude and limit under its terms of business.
The factual scenario indicates that both Adam Co and Burt Co had a regular course of dealings in respect of the Burt Co’s provision of car valet services, which were ostensibly contracted into on Burt Co’s standard terms of business. The issue in contention is whether the contract was for the Deluxe Service and if not, whether the exemption clause was incorporated into the contract.
Whilst there is nothing to indicate that Adam Co expressly accepted and signed Burt Co’s standard terms and conditions, it is evident that the process of handing Adam Co Burt Co’s standard terms of business happened approximately eight to nine times within a twelve month period, which will render it difficult for Adam Co to argue that the terms and conditions do not cover the terms and conditions due to the regular course of dealings between the parties3. This in turn is crucial to the enforceability of the exclusion clause4.
With regard to the current scenario, the most applicable scenario will be incorporation of terms based on previous dealings between the parties. For example, in the case of J Spurling Limited v Bradshaw,6 in circumstances analogous to the current scenario, Bradshaw had received the document with the exemption clause on previous dealings with the defendant on numerous occasions and the Court of Appeal concluded that “by the course of business and conduct of the parties the clause was part of the contract”7.
In the Bradshaw case the clause had been incorporated notwithstanding the late arrival of the document ...Download file to see next pagesRead More
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