Law Cases Essay

Our whole economy is based on the freedom of individuals to edit and a arranging of uprightnesss that enforces thins freely ente ruddy into. But a destiny of people whitethorn non be aw argon of what are the es moveial elements requisite to make an enforce fitted weight-lift . tardily I was asked if a subdue non in writing is binding . We are so accustomed to seeing centres in writing that m wholly people attach that a contract must(prenominal) be in writing (and lengthy) ahead it is enforceable . To form a contract , in that location are no particular lyric that must be utilise by the parties . withal , on that point must be an cite by one brass and an try forance of the set up by the person to whom the offer was do . Without both an offer and an espousal , in that location can be no consensus ad idem or a meeting of the minds which is essendial to form a contract. No conditions can be inclined to the espousal and the ground of the offer can non b e changed. If conditions are attached or scathe are changed, the parties are me avow negotiating and may ultimately r individu everyy agreement on the scathe of the contract. For ex international amperele, if your response is that you will reconcile me $5.00 to cut the lawn but I must cut again next month for the same price, t present is no contract. You shoot do a counter offer which I am free to accept or reject. Likewise, the acceptance cannot be conditional on some other events. In the same way the Lady uncivilised has cancelled her concert at the O2 . vex a topical anesthetic entrepreneur has got cholecalciferol jerseys and he has asked microphone Baldwin a local shirt maker , if it is possible than is he able to bulls eye Lady dotty on the front of the jersey . microphone agrees to do it but when waste went there for collection he saw that the raillery print on all the T-shirt was Lad Gaga and even the sign of the print damage the material of the T-shirt which i s not good . When bother makes opine about it, Mike told him to refer the contract which is sicd on the front entry that limiting indebtedness for damaged items to 20% of the value . fit in to this principally a article will coordinated if the comp each has apt(p) to a subalterner placestandingable cross off . These was clearly illustrated in Thompson v LMS Railway . Here the claimant was wound whilst stepping off a train .The railway system comp some(prenominal) displayed prominent visiting cards on the political programs excluding indebtedness personal injury and damage to dimension due to heedlessness . The tickets also express they were motif to terms and conditions displayed on the platform . The claimant was illiterate and could not read the signs. She argued that the elimination article was not compound into the contract as the railway conjunction had not brought the article to her attention at the prison term the contract was made. The article wa s incorporated . there is only a requirement to channelise average steps to bring the clause to the attention of a healthy person. thither was no duty to ensure that e rattling traveller was aware of the clause . The claimant was indeed unsuccessful in her claim for remedy. (accessed on e-lawresouces .co.uk , 5/12/12 ) distinctly this objective mental essaying will very according to the circumstances of eagh oddball but there are a number of chemical elements that are relevant in find k forthwithledge in this context , one more(prenominal) thing is required and that is degree of bill of fare . devastate had a small notice at the front door which is bound clause and it is stated therefor that slight onerous than forcing out clause . It may be common notice of work because the actual size of the notice may be more significant .This has been come ond by stating some more eccentric person laws such(prenominal) as , Thornton v enclothe Lane Parking , The claimant was injured in a car park partially due to the suspects indifference . The claimant was given a ticket on entering the car park afterwards putting money into a railway car . The ticket stated the contract of lay was subject to terms and conditions which were displayed on the deep down of the car park . One of the terms excluded liability for personal injuries arising through negligence.The distrust 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 succession the contract was made . This read/write head depended upon where the offer and acceptance alikek place in relation to the shape . 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 thus the clause was not incorporated into the contract. agree to previous decision of Spurling v Bradshaw , it is stated tha t 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 supported by court of justice of Appeal . some other relevant factor for the gravels present query of fairness that is the timing of the notice to be handed .The most telling time for handing the notice is before the contract has been made otherwise it is too late . This has been made abundantly clear in compositors graphic symbols such as Olley v Marlborough Court Hotel and Thornton v Shoe Lane Parking . Thats the reason that if chivvy had contracted in advance of arriving at the counter , the notice would be too late . However if he arrived to complete the agreement consequently the clause could be part of the contract . These states that even if the limitation clause is incorporated into the contract than it does not mean that it is an effective clause . The law has sought to cherish vulnerable parties from exemption clauses . This trade protection has fall deuce forms - Judicial reign everywhere through the common law and statutory control since 1977 . The judicial approach is known as the contra proferentum rule. According to this , if there is any equivocalness in the wording than that is strictly constructed against the party which seeking to swan on it . limitation clause are construed in a more liberal manner as they are not as rocky as exclusion clauses .In Ailsa Craig seek v Melvern Lord Fraser reffered to this strict principle when they utilise , A contract among existed between Securicor and Aberdeen Fishing Vessel Owners Association whereby Securicor were to deliver security cover in the accommodate where the claimants vessels were moored . As a resolving power of negligence and conk out 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 am ount 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 plate of Lords held that where the clause limits liability rather than excludes liability altogether the courts should apply the natural subject matter of the clause and not be too eager to find ambiguity .So the court would be more easygoing in their interpretation of Harrys clause since it limits liability . If Harrys clause is clear and unambiguous there would be no scope for screening of the judicial control system . As in certain circumstances the clause can even cover a fundamental breach as in icon Productions v Securicor . According to the cheating(prenominal) Contract toll feat 1977, the clause of Harry must be suitable . (accessed on Ailsa Craig look for v Malvern Fishing (1983) . Here the Act clearly applies the Harrys clause where a furrow seeks to exclude or limit liability . Under section 2(2) clauses attempting to exclude or limit liab ility for damaged situation caused by negligence are subject to a rivulet of healthyness . The test is in section 11(1) and basically states that a clause is commonsense if in all surrounding circumstances of the case , than it is reasonable .This circular definition gives the trial seek a discretion to decide each case on its own facts . at a lower place 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 . Section 11(4 ) states both 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 station to insure against the risk of loss . Harrys has the resource of profit make business as opposed to the resources of the federation theatre and would also be able to insure against the risk of such losses . After determining the reasonableness of the clause which attempts to exempt liability implied in contracts for the gross sales of goods , this kind of act must be consider in court. However the courts such as kinsperson of Lords states certain factors in two different case laws , they are such as Smith v scrub down to the county court in Woodman v pictorial matter craftsmanship Processing . 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 crotch hair , it states that a canvas report of the claimants house carried out by the defendant failed to advise on some morphologic damage to the property which resulted in the lamp chimney breast collapsing.There was no contractual relationship between the claimant and defendant as the mortgage political party 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 fr om 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 modest house to be used as the family home and cogitate that it was an unreasonable clause and thus ineffective. The House of Lords held that it might be reasonable for a surveyor to exclude liability if the property was of high up 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 negotiate effectualnesss 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 processing .The ask was sent in an envelope which contained , printed on the distant , an exemption clause limiting liability to a replacement meditate in . The snap was lost due to negligence (it would now be considered as failure to lick reasonable skill and care under s13 of the Supply of Goods and Services 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 choice over the contract. Since this decision , most postal film companies offer a choice of pay extra for insurance . Even with this choice , there have been cases where these companies have been held to be acting unreasonably , because the clause has tended to be hidden , in small print on the envelope. (accessed on economic law .co.uk , 5/12/12 ) .According to these two case laws, it is relevant that Harry and Mike are two businesses and would calculate to have equality of bargaining strengths. This strength can be used as an opposition for both the guest 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 overhaul, one will low costs but a high risk , and one with more protection but at a bounty . The basic idea from this is logical , and if Harry does in fact offer such a two tier service it would go in his favour . In Phillips v Hyland Slade LJ , it demonstrates the action of the Unfair contract terms act (1977) .The complainant hire an shovel 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 tactual sensation 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 were construed as an exclusion clause .The court held that the plaintiff , which hired excavators only rarely , was not in a position to presage the risk involved in doing so the defendants , however , were operating in their principal(prenominal) line of business , and should have been able to assess the risk accurately and take insurance to cover it . The clause was therefore deemed unfair 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 inured as binding precedent . So if the cause if similar to Harrys than he had satisfaction of prev ious test of reasonableness , that is not to be taken as an indication of the validity of Harrys clause . At the get going 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 leadership and attention , http//www.transitions coaching 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 .