Understanding Exemption Clauses in Contracts

recording a very good afternoon to all of you we would like to continue without discussion of terms of contracts and as we started the last time we are discussing uh exemption clauses or exclusion clauses or limitation process this afternoon we have already explained that it may happen that in making a contract one party may insert a close contract so that when he or she is in breach of the contract either he cannot be held like in which case uh there is what they call the total exclusion that is exempt exclusion clause exemption clause properly so on the other hand the party may insert saying that well when i am in britain i can be heard liable but i cannot be held like beyond a stated limit maybe in terms of payment of money well i cannot be held liable beyond a certain amount of money and that way we call it limitation plus limitation clause because the person has not fully uh stated that i don't want to be heard liable at all all that he or she is saying is that i am enriched you cannot hold me liable beyond this limit beyond this amount of money and so on and so forth now if you look at it an argument to be made that yes that should not be problem at all because after all this is about contracts and uh there is what they call the freedom of contract so what is the big deal if uh what is the the the big deal someone has inserted uh something in the country trying to exclude or limit liability so on that i would like to just quote an asset from agile so the point for example uh will be made that will uh contract is a contract and because there is a contract the parties are liberty to negotiate that they want so if they have if exemption a squishing clause or limitations has been uh included in it why not why what should be the worry of anyone now what is happening uh is that if you look at exemption plus despite the fact that it appears to be exercise of freedom as it were no doubts on the face of it also yes what do you mean by saying that [Music] for one party to say that when i am embraced i cannot be held liable and if i can be heard like before and not on the other hand when you are enriched i am willing to come after you and whatever in law i can get against that certainly is problematic and as we noted last semester when we are discussing some of the general introductions to a law of contracts we did acknowledge that despite the fact that if we look at the uh native uh uh century uh the literature of course following adam smith's work inquiry into the causes of the wealth of nations the laissez faire police know that the assumption uh was that was based upon uh the party autonomy that is freedom of the parties nevertheless uh in the course of time we have seen how uh the courts lawmakers for good reason could not for example just uh hold your hand and say that people are free to do not all as whether it is fair or not fair so we have seen how the courts and lawmakers have and for that matter in talking about uh and talking about exemption clause or limitation course it is one area where we see very much intervention of uh the cuts obviously to try and protect the vulnerable or the weaker party and so what kind of protection what kind of control mechanism do the courts please so as you ensure that the vulnerable the wicca party is not over exploited by the party having the party having the superior bargaining power well uh two two tens or two strategies are actually uh uh made use of first and foremost before exemption clause exclusion clause or limitation clause will be upheld as valid it must satisfy the test incorporation in other words it must be shown that exemption clause as an exclusion clause was made part of the contract and not just something outside the contract if it's part of the contract then it's part of the terms of the contracts and that is fine then that is not enough if it is part of the contract part of the tense of the contract because exemption clause limitation clause uh certainly appear to be unfair or unjust in the event of a bridge the party who is seeking to take advantage of it and obviously it will be like the the party in bridge he is trying to make use of the exclusion or the limitation clause so as to either completely avoid uh being made accountable minimize how far he would be made accountable for the bridge now when it happens that way the part will need to interpret the wording exemption clause to ensure that the exemption clause as worded reflects the breach which has occurred the events which constitute the breach which is being complained of by the innocent party must be covered by the welding of the exemption clause if it is not covered by the wedding of the exemption clause then the defaulting party cannot take advantage of it so as to uh provide defense for him also as to allow him to get off the hook escape liability so two things the exemption clause obligation clause must have written that is must have been made part of the contract that is and that is not enough when a bridge has occurred it must be shown that the exemption cross asked where they actually covers or encapsulates it actually fits coincide with the bridge which has occurred that way it can provide protection for the party at whose instance it was uh included and later uh you'll notice when we are discussing interpretation that when the court is trying to interpret as whether the exemption clause actually covers a particular event which has occurred or not we come across the principle that the courts are extremely uh strict the courts are extremely strict when it comes to interpretation of exemption clause and the reason for the thickness of the court simply lies in the fact that exemption clause as i've told you is really unfair and has uh contractual practice and that is why the court will try to hold it to highest standards of you know uh propriety before you can take advantage of it so we are going to take this test one after the other so uh first and foremost let's say a few ways about the fact that the exemption clause must satisfy the requirement of incorporation as we have said for us to be valid exclusion clause will be valid it must have been incorporated in the contract it must have been created in the contract and when we say it must have incorporated in the contract that is simply to say that uh as a matter of fact it must be an integral part of the contact it should form part of the terms of the contact the content and a very good case to illustrate this is the well-known case of a chapel thing against the uh barrie unity which is known by every student of law of contract in the common law world and that case i didn't have told uh i knew previously before that uh what happened was that we had like the the city council equivalent of maybe the district assembled the metropolitan assemblies that we have and they were in charge of a in their communities so the council had chess holidaymakers so those who wanted to last by the beside could actually hide now the chairs have been packed and on this particular occasion uh what happened was the chairs have been packed and uh they had just written uh the price that yes uh this uh chest for a high and that you have to take a ticket before you can actually uh get it now when you get the tickets at the back of the tickets or like i mean on the ticket there are writings to the effect that the council will not be heard liable for any accident or damage arising from the high of the chair in other words if you hide the chair you sat on it it collapsed and you got injured you could not hold the cancer liable for that so these words were written on the ticket so our friend chappelton i hired the chair followed the instruction spelled out by barry urban recons that and unfortunately for him uh the chair and when the chair collapsed he sustained uh in and he got his lawyers ensued the very uh uh uh urban district council now when the council was sued the council put up is that well they are not as well disputing the fact that the plaintiff might have on the chair collapse and sustain injury nevertheless they are very much aware the fact that on the tickets which was given the plaintiff there are west there are inscriptions on it to the effect that the company i mean that is the the cancer accept liability for any injury or damage however it arises so that was the defense that they were trying to put up now there eventually the exclusion the trial the county courts the county court in barry uh seem to have agreed with the council that yes uh despite the fact that what happened was an accident resulting in the injury clearly the cancer was escapated the cancer could not be blamed because the words were quite clear on the ticket that the cancer was prepared to accept liability for any injury so that was the the holding of the county court the plaintiff was definitely agreed and he appealed the matter to the next level of the judiciary and when the matter came before the the appellate courts the court held that their tickets on which the west uh supposedly the exemption clause which the cancer is supposed to take advantage of the ticket was a mere voucher or receipt for the money paid for the high of the chair and for that matter the conditions or the the weddings which have been written on it will not be considered as a forming part of the contract because mind you you get the tickets after you have paid for the chairs so you are giving like the taking that yes uh you have but the court was trying to say that if you look at the way things were organized uh you could uh actually of uh of course they said okay if you look at the park the pal where the palace the notice was there saying that yes there are the chair is for uh i did a two dime that is what was written but the notice did not include like uh the words that if uh you take the chest for two damn then the council is not prepared to accept any liability the the the the purported uh limitation or the switching clause was actually uh written on the ticket yeah so that was it so the take away was that the courts came to conclusion that the exemption clause could not be considered as forming part of the contract because the plaintiff got to know about it after the contract and not doing a contract so that is the point that for clause to be appealed as valid it must be incorporated in the contract and being operated in the contract means that it must have been brought to the attention of the party either before or at the time of the conduct and after so this brings us to the very important question that in uh which ways may the requirement of incorporation is satisfied in other words how can we prove that the exemption or the exclusion clause has actually been made part and parcel of the contract well even the case law in the literature this may be done uh in one of three main ways as it were my signature by notice or by cause of dealing so let's take uh this one after the other and say a few ways about them so incorporation by signature that is we are dealing with signed documents uh where the exemption is contained in a signed document then the position of the law is that in absence of fraud or misrepresentation a person who will find a document is deemed or considered to have uh agreed to what augment is saying so that is why we have to be careful when you put your signature on the document you have to note that it means that you have accepted to be bound by it and a very good case uh which uh you are right is the case of a restraint against a grand cop now in the case of uh lestrange against graco limit the plaintiff bought cigarette vending machine and she was given a document to sign although they were smaller characters but they could still be read she signed without really reading and when she got this correct vending machine installed in her cafe in no time it proved to be defective not functioning well so she sought to actually uh sue the seller and company which so did place reliance on an exemption clause in the document that she the buyer had signed and uh the buyer sought to say that well i didn't know that i was going to be bound in this way and the seller could not be here liable now lord justice uh scratten who uh was part of the panel who decided he was a great couple limited in english called appeal made the point that quote the plaintiff having put a signature to the documents and not having been uh induced or included to do so by any fraud or misrepresentation cannot be heard to say he's not bound by the terms of the document because he has not read unquote so his lawsuit was saying that you not having signed no you know having read the document is not important what is important is that you signed and then when you sign nobody uh defrauded do nobody track you or nobody deceive you into signing or nobody subjected you to duress or any uh other uh improper pressure for you to sign so so far last you have signed whether you read it or not doesn't matter so you are bound by the document says so that is the point about the string against the graco and of course we have noted already in the case of a wilson and ruby when we're discussing uh the the the early part of the terms of uh contract especially the parole evidence [Music] uh where the court among other things are noted that mere negligence in not reading a document is not excuse from the effect of the the document that you have uh signed now that is just the general rule so to this general rule we certainly have a respectable person and uh one exception is that where the person signed the document as a result of fraud or misrepresentation that is to say you were deceived into signing the document if that is the case then the fact that your signature is on the document will not mean that you are bound by what the document is saying and a very good case to illustrate that is a well-known case of a curtis against a kamika cleaning company limited where a woman took her wedding gown to the laundry and the wedding gown had certain uh decorations as beasts in sequence now when she gave the gown to the laundry attend the attendant gave her a document to sign and she inquired from the attendance if like what the the purpose of that document was and the attendant told head that well by the document that she was signing the company was saying that it was not prepared to actually accept uh liability uh for distraction to the the beast and the sequence that was what the attendant told the woman so she signed meanwhile the rare effects was said that the company was not prepared under any circumstances to accept any liability at all for any distraction to the address now later on when the woman came to collect the breasts it was badly stained that's right so she sealed the laundry company then the laundry company sought to place a reliance on the so-called exemption clause which the woman uh signed and the court held that well landry or the cleanest were not protected uh by the exemption clause because the the true extent or the true scope of the clause had been misrepresented to the woman because the woman had actually enquire at the time of signing that please and this thing that i am signing what is their purpose do you tell her that well we are saying that should anything happen to the beasts and sequence then the company could not be heard liable so that was the understanding with which the mind sign but the company really meant more than that it meant in fact that should there be any distraction at all we are not going to be heard liable and the court said that well in safaris the true scope or effect of the same same clause had been misrepresented to the woman the signature on it would not actually make her a liable or could not bind her to what the document was so you see how catches against chemical cleaning company limited is an assertion to the case of a strange again graco limited of course uh related to that is play the same thing another way of putting that exception is the plea recall the the non uh s factor uh so known as factoring so the woman was trying to say that yes uh i have signed the document but the document i've signed is of different character or nature from what i intended to sign a document i intended to sign was a document who says that i am assuming risk for any distraction would be happening to the beast and the sequence and not certainly saying that i agree with the company that should there be any distraction i'm not going to be heard liable so the plea of non s factum is another way of saying that despite the fact that my signature is on the document i should not be held bound by the document because it is not my act it is not my true act it's not my true act in the sense that i did not intend to actually sign a document of such a nature let us keep that in mind and that was why the interesting case of sanders against an angular building society otherwise reported garlic and lee an old lady was persuaded by her to sign a document conveying her house with her nephew's friend now the old lady had believed that she was signing a deed of gift to her nephew now she had not read the document because glasses were broken yes although it was held that the document was valid but the courts made some useful points that the signed documents before you can be exclusive from the signed document must be fundamentally different in effect from that from what it was thought to be so if you can show that the document that you sign is of uh a fundamentally different character from what you thought you were signing then you complete uh the plea of non-est factum uh non uh s facto and that actually uh available and secondly before you can also rely on none as a factor so as to escape from a signed document uh you must prove that you are not negligent in signing the document you're not negligent in signing the document because if you look at the uh the woman who signed uh the documents they did or give kindness against angular building society you notice that there was negligence what was the negligence you know very well as i am sitting here my glasses are broken so i have to find time and go and get a replacement of course i don't know whether that will apply to me but uh on a more serious note the woman glasses were not there meaning that her ability to read was impaired and yet she went ahead and signed so that was the negligence so if it had not been for that negligence then uh none s factum could have been successful so as to release it from the document that uh she signed yeah there are uh a a plethora of cases concerning a known spartum can look at the case of enchroma against ewa the case of a wilson ambrobe and then a cow again the story where it does emphasize that the mere negligence in not ready it's not the basis for uh invoking known s factor now so we have seen how the exemption was pushing clause can be said to have been incorporated by means of signature so that where the party against whom it is being invoked signed the document as we have seen uh the exemption clause can be taken as having been incorporated in the contract that is fine what about situation where the person has not put a signature so we want to look at incorporation by notice in other words where the exemption clause does not require signing does not require same answer then the position of the law is that you must have been given reasonable and sufficient notice of the existence of the clause in other words you must have been made sufficiently aware that the samsung class was actually meant to be part of the if that was the case then uh the exemption clause the exemption clause can actually be treated as forming parts of the terms contract that so let us keep that in mind and a very good case to illustrate the point that where the exemption clause does not require signature then adequate notice must be given to the other party before or during the time of making the contract well known case of uh parker against south eastern uh railway uh parker against southeastern very interesting he decided in 1877 what happened in parka against south eastern railway well there plenty in that case deposited a back in the cloakroom at the railway station you've got the railway station you have like a place that you can live like maybe your staff there and she was giving i mean he was giving tickets uh a ticket and they take it with the number uh i mean on it which he was given and had a date and wes at the back uh and and the west where that on the front of the ticket they just written see back so they take it you have like the ticket it's written here see back meaning that look at the back of the ticket for certain writings so that is uh uh what happened and what was written back if you look at the things written at the back among other things uh it was stated that quote the company would not be responsible for any package exceeding the value of 10 pounds in other words uh they have written at the back of the ticket that if you leave your staff in the clock room and anything should go wrong you cannot let the company pay more than 10 pounds meaning that if the value of if the value of what you are putting in the cloakroom exceeds uh 10 pounds and you have to actually uh make sure uh that you don't put it there because the risk that you are taking if anything go wrong the maximum compensation you can get is just 10 pounds so that was what was written at the back of the co of the ticket now the plaintiff in this case did not really did not really read the tickets of course uh not only a packer a good number of us we don't like reading especially only when we bite having good time to we don't bother to read the the user manual we just start using it maybe it's a behavior we need to check so that we start reading before we start making uh avoidable mistake so uh parker did not read the ticket and parker's bag was worth 24 uh uh pounds a little over that it got lost and when they got lost uh parker decided to sue the railway company and when the railway company was sued it placed reliance on the west at the back of the ticket and the west at the back of the ticket of course was not an exemption or exclusion it was a limitation clause limitation clause in the sense that the company was saying that well if it will be held liable for any breach or any missing item at all not more than what 10 pounds but in this particular case the missing item was more than 24 pounds so uh at the trial there it was required in doses that is the judge sitting with the help him to decide the questions or facts so the jury is a trial fact and the judge will give like the direction so that directed the jury to consider whether the plaintiff had read or was aware of the special condition on the ticket upon which the bags have been deposited now the jury answered in the negative that is to say that the julie said that well in regard to the circumstances the plaintiff was not aware that the bag that he deposited with the company it was governed by the condition that if anything went wrong the company could not be held liable for more than uh 10 pounds as it were so that was the verdict of the of the jury and on basis of that the fire court entered judgment in favor of the plaintiff now the railway company appealed they appealed the decision and when they got to the english court of appeal the english court appeared came conclusion that the direction which the trial judge gave to the jury was wrong direction had not directed properly on the questions that they needed to investigate and answer and in the view of the the the cough appeal the important question which needed to ask for the jury to answer was whether the defendant had done what was reasonably sufficient to give the plaintiff notice of the condition in other words whether the defendants had made the plaintiff aware that the exemption cross existing if he had made the plaintiff aware that the same thing was the defendant could take advantage of the exemption clause so that was the the the class of the of the matter and of course the court directed that there should be retrial retrial means that the court of appeal did not answer as whether the exemption clause in this particular case was valid or not but all that it said was that the code below that the trial court had not asked the the relevant question for the jury to answer so there was a need for the matter to be remitted back to the trial court for retrial so based upon the question that the court of appeal thought ought to have been asked in the court below the cuts of appeal was saying that if the plaintiff diary mr parker was aware of the conditions at the back take it then he'll be bound on the other hand if he did not know he would still be bound if he was giving the ticket in such a way as amounted to reasonable notice in other words what was crucial was that having regard to the circumstances could it be said that reasonable notice enough information i'll be giving to the plaintiff regarding those west which amounted to the exemption clause and on that note it is instructive to quote the victim of lord justice melish lord that's his marriage rendered himself as follows i am of opinion therefore that the proper direction to leave to the jury in these cases that if the person receiving the ticket did not see or know that there was any writing on the ticket he bound by the conditions that if he knew there was writing and knew of that the writing contained conditions then he's bound by the conditions if he knew there was writing but did not know but did not know but did not know or believe that the writing contained conditions nevertheless will be banned if the delivery of the ticket to him in such a manner that he could see there was writing upon it was an opinion of the jury reasonable that the writing contained conditions unquote so admittedly it comes back to what they call like objective tests or the position of the reasonable person would an official bystander for example consider the answers as being adequate so as to uh let the other party be aware that those words actually existed and they were meant to form part of the country which was being concluded so that was the uh the cracks of of of the matter so it emphasises on reasonable notice not actual notice and that is what's the case of thompson against the london uh uh came to uh that that the notice we are talking about we are not talking about uh actual of course if there's a natural notice then don't miss it very easy but it is reasonable and noticeable it makes it objective rather than test because his actual notice then it becomes subjective someone a person i didn't know i didn't see it but if we say it's a reasonable notice then it is a matter of what objective tests so let's pay attention uh to that and that is why i would like you to contrast the case of thompson with the case of a taunting shoe lay a packing because the facts are very similar but the courts came to different conclusion so if we look at the thompson against the london midland and scottish railway for example in that case the ticket indicated that the conditions of the contract could be seen at the state office that is what the ticket stated that yes if you wanted to know conditions of the contract go to the station master's office or look at the timetable now the assumption clause was in clause five five time table uh and if you pay a little bit of money maybe you will get a copy of the timetable so that you read it and a ticket itself only costs two and six pence so in the uh given those circumstances it was uh held by the court that reasonable notice have been given and as i indicated the test is objective and it's not subject for that matter it is quite irrelevant if the affected party is blind or illiterate or otherwise unable to understand it of course that also seems harsh and if you look at the more recent legislation for example if you look i recall like the disability uh if you look at the persons with the disability act for example you would that the cuts will rise differently now when the court will have to for example decide whether enough i'd be done to bring an exemption clause to the of uh to open to attention of what you call it a person who is blind or a person who has a hearing problem and the hearing problem here especially if you go to our you know lower sessions i suffer and credit here or second sometimes they have a recorded message and they are making some announcement and and that can also be a way of giving notice about satanism so where a person is uh for example suffering from a hearing impairment how do you expect that person to actually uh know about the existence of the exemplar which we are saying by uh word of mouth that's why as i said these cases actually uh old cases but if you look at our 2006 like the persons with disability acts uh 2006 at 715 certain uh protection has been given to a person who suffer from beerus disability and for that matter it be different how the court may have to interpret some of these things especially so where the contract involves a person suffering from some of the disability and as i said if you take cases like thompson again land in midland scottish this was 1930 case and in those case in those days personally right had not properly been reported and as i i told you in ghana 2006 we have the persons with disability act at 715 and it gives a virus protection to a person with disability and that is why i think that some of these rules may probably have to be recalibrated or re-interpreted when we are dealing with a contract involving person with disabilities so i mean that was just for your information of course if you look at the the the the english case of idea against the jawa like a notice containing exemption clause or stuck on the windscreen of a car that well passengers travel at their own risk just imagine you went to a lottery station and there's a notice boldly on the car that well passengers travel on their own uh on at their own risk but that was the situation in jia and cujaw and notice was in english and a personal concern here was a german persona who could not speak english now during that trial i was made with the court held that he was not bound by the cross because being someone who could not speak english reasonable k had not been to bring it to his attention so if you look at it this actually is a departure from the thompson case which we have just seen and if that is so if you go to hotels if you go to restaurants or other public places in which they have uh know those writings you pack your car at your own risk of vulnerable left in the car and so on and so forth so question is what about illiterates well the argument will be uh so far as english is an official language [Music] it is no thanks to you if you cannot you know read and speak if you are willing to engage in certain transactions you have to make a decision as whether you want nobody has asked you to go to a hotel or go to a restaurant and for that matter if you're good of course you also have a lot of thought to do it later on it's something you call the occupies liability so the the owner of the premises has got a responsibility i let visitors or those who are coming to the promises about or hidden dangers but quite apart from that he doesn't have any such obligation yeah so that is something that we may just have to go and as we speak now the law reform commission is uh trying to uh conduct a study as whether we can have our own unfair contract terms legislation in which we make provisioning for some of these matters now in the course of uh this course i will make available to you a document from the law reform commission to the faculty which the dean referred to us to look at it as our input but having said that it best emphasis that part of the responsibility of giving adequate notice about the existence of exemption or mutation clause is that attention might be drawn to any unusual clause in other words where the exemption clause is not something which is quite usual something which can be taken for granted and people don't even have to if you like think a lot about it then the responsibility in terms of what you need to do to bring it to the attention of the other party is actually high so therefore the more unusual the exemption close the greater the responsibility to bring it to the attention of the other party and that was why in the case of a thornton against julian parking it was stated that a person who drives his car into a car park might expect to find in his contract a clause excluding liability for loss or dummy to the car but special notice should have been given of a clause reporting to a school liability for personal injury in other words if i pack my car if i go to a car park and there's even a disclaimer notice over there i can reasonably take it for granted that the management of rubrics in china the car park is simply telling me that should there be any loss or should there be to the vehicle that i have packed over there i am not going to for a minute yeah so uh a lot we have to be done to uh bring the unusual clothes to the attention of the person as i said if i pack my car i can reasonably take it for granted that uh the the owner of the promises is saying that well if something should happen to the car or something is lost and so on he or she is not going to accept responsibility that is fine on the other hand i did not expect that the person would say that he cannot guarantee my personal safety and that if anything should happen to my person he or she is not prepared to accept responsibility if that were the case that is something unusual unusual in the sense that we don't often see such uh uh you know such a disclaimer or such exemption would be and that is why taunting against william pacquiao is saying that if the exemption clause you are trying to include an encoder is more unusual it's more uncommon then you need to do more bring it to the attention of the other party and on that note i would like to also remind you of the interesting case of the inter photo picture library against the starlotto visual programs a 1989 decision of the english code of appeal which reinforces the point would you on behalf of two in the uh taunting sri lankan case and if we look at the the inter uh photo picture library limited against a lotto and visual program the plaintiff ran a photographic transparency lending library and the defendants were advertisers so there was a telephone station between them and as a result that the plaintiff delivered to the defendants 47 transparencies together with the printed note containing nine printed condition now another condition called condition number two provided that the transparencies were to be returned within 14 days failing with a holding fee of five pounds a day and v80 would be charged after four weeks the transparencies had not been returned fire upon plaintiffs sent an invoice to the defendant for three thousand seven hundred and eighty three pounds uh fifty pence as a holding charge for the transparencies now when the matter came before the court the court considered the issue of weather condition number two was sufficiently brought to the attention or notice of the defendant so as to make it a term of the contract and the courts concluded that no it had not been brought sufficiently to the attention of the have not been brought as civilian to the attention of the of the other party for that matter uh it was not considered a term of a contract and the court of appeal made the point that the more unusual the clause the greater the notice required and again where are the exemption clause there are some signature of the party notice of that term must be communicated to the other party before or at the time the contract is made and not after and of course uh taunting again they truly makes that point and it's a very interesting case in terms of like the the facts it does like maybe let me see kumasi we don't have like the i'm not aware of a car park in kumas what is the equivalent of the the car park at the international probably the new airport they are doing commercial may have that but yeah where you know you enter the car but there's a machine there you put a coin in or this time they have like what you got that you press it and then a token will come out so very similar arrangement happened in the taunting again the shoe lame packing limited so the plaintiff in this case made the contract to the car company inserted a queen in the ticket machine and the ticket was issued afterwards and our conditions were displayed inside the car park so if you enter the car park you have a lot of conditions in terms of uh what the company who accept and what the company will not accept and all that so but the fact of the matter is that you don't become aware until you have entered the car park and because you don't become aware and you've entered the car park the court was the view that uh the notice of it attention before or the at the time of making the contract that is the the point is just just like the chapter there in bahrain ubc uh over there to us we notice the notice of the same thing cross came after the contact it should be before or at the time or put differently the notice might be contemporaneous for the contract in other words the notice of the reasons of the exemption or the limitation should be given a design at the same time that the contract is victory as happening in the case of olay against uh ma uh borough court limited a very uh interesting case especially uh for those of you who like uh using hotels when you travel in ole and marlborough are called limited decided in 1949 we had like a husband and wife like a couple they visited the hotel as guests and as is usually the case you go to the hotel you go to the reception and then you are set up you pay you are shown your room they were their bedroom and they saw later on on one of the walls of the bedroom a notice stating quote writers or not proprietors will not hold themselves responsible for articles lost or stolen unless handed over to the managers for safe hazard beyond good i mean this is quite uh this is quite uh common in the uh virus uh hotel so all vala bush be handed over i mean that is what we usually see so similar thing uh happened in olay now eventually the wife uh closed the self-locking door of the bedroom went downstairs and hung the key on the board in the searching room and while she was away he was wrongfully taken by a third party who opened the the bedroom door and stole her face some of her valuables and they sued the hotel and when the mata came to court the court held that because at the hotel you know put up the argument that that is why we warn you that you should have handed over your vulnerable to us we didn't do that so you're not going to be held liable and so the court needed to decide the the worst the worst on the walls of the hotel room can they be considered as forming part of the contract which was made between the couple and the hotel so what needed to be decided was that at what point was the contract made and the call to the view that the contract was made at the point that they were being given the room that is a reception point and since at that time they had not been told or they had not been given any notice uh that the exemption clause written on the walls existed it could not be treated as following part of the of the contract and for that matter uh the notice or was considered as having been given after the contract and did not form part of the contract so

recording a very good afternoon to all of you we would like to continue without discussion of terms of contracts and as we started the last time we are discussing uh exemption clauses or exclusion clauses or limitation process this afternoon we have already explained that it may happen that in making a contract one party may insert a close contract so that when he or she is in breach of the contract either he cannot be held like in which case uh there is what they call the total exclusion that is exempt exclusion clause exemption clause properly so on the other hand the party may insert saying that well when i am in britain i can be heard liable but i cannot be held like beyond a stated limit maybe in terms of payment of money well i cannot be held liable beyond a certain amount of money and that way we call it limitation plus limitation clause because the person has not fully uh stated that i don't want to be heard liable at all all that he or she is saying is that i am enriched you cannot hold me liable beyond this limit beyond this amount of money and so on and so forth now if you look at it an argument to be made that yes that should not be problem at all because after all this is about contracts and uh there is what they call the freedom of contract so what is the big deal if uh what is the the the big deal someone has inserted uh something in the country trying to exclude or limit liability so on that i would like to just quote an asset from agile so the point for example uh will be made that will uh contract is a contract and because there is a contract the parties are liberty to negotiate that they want so if they have if exemption a squishing clause or limitations has been uh included in it why not why what should be the worry of anyone now what is happening uh is that if you look at exemption plus despite the fact that it appears to be exercise of freedom as it were no doubts on the face of it also yes what do you mean by saying that [Music] for one party to say that when i am embraced i cannot be held liable and if i can be heard like before and not on the other hand when you are enriched i am willing to come after you and whatever in law i can get against that certainly is problematic and as we noted last semester when we are discussing some of the general introductions to a law of contracts we did acknowledge that despite the fact that if we look at the uh native uh uh century uh the literature of course following adam smith's work inquiry into the causes of the wealth of nations the laissez faire police know that the assumption uh was that was based upon uh the party autonomy that is freedom of the parties nevertheless uh in the course of time we have seen how uh the courts lawmakers for good reason could not for example just uh hold your hand and say that people are free to do not all as whether it is fair or not fair so we have seen how the courts and lawmakers have and for that matter in talking about uh and talking about exemption clause or limitation course it is one area where we see very much intervention of uh the cuts obviously to try and protect the vulnerable or the weaker party and so what kind of protection what kind of control mechanism do the courts please so as you ensure that the vulnerable the wicca party is not over exploited by the party having the party having the superior bargaining power well uh two two tens or two strategies are actually uh uh made use of first and foremost before exemption clause exclusion clause or limitation clause will be upheld as valid it must satisfy the test incorporation in other words it must be shown that exemption clause as an exclusion clause was made part of the contract and not just something outside the contract if it's part of the contract then it's part of the terms of the contracts and that is fine then that is not enough if it is part of the contract part of the tense of the contract because exemption clause limitation clause uh certainly appear to be unfair or unjust in the event of a bridge the party who is seeking to take advantage of it and obviously it will be like the the party in bridge he is trying to make use of the exclusion or the limitation clause so as to either completely avoid uh being made accountable minimize how far he would be made accountable for the bridge now when it happens that way the part will need to interpret the wording exemption clause to ensure that the exemption clause as worded reflects the breach which has occurred the events which constitute the breach which is being complained of by the innocent party must be covered by the welding of the exemption clause if it is not covered by the wedding of the exemption clause then the defaulting party cannot take advantage of it so as to uh provide defense for him also as to allow him to get off the hook escape liability so two things the exemption clause obligation clause must have written that is must have been made part of the contract that is and that is not enough when a bridge has occurred it must be shown that the exemption cross asked where they actually covers or encapsulates it actually fits coincide with the bridge which has occurred that way it can provide protection for the party at whose instance it was uh included and later uh you'll notice when we are discussing interpretation that when the court is trying to interpret as whether the exemption clause actually covers a particular event which has occurred or not we come across the principle that the courts are extremely uh strict the courts are extremely strict when it comes to interpretation of exemption clause and the reason for the thickness of the court simply lies in the fact that exemption clause as i've told you is really unfair and has uh contractual practice and that is why the court will try to hold it to highest standards of you know uh propriety before you can take advantage of it so we are going to take this test one after the other so uh first and foremost let's say a few ways about the fact that the exemption clause must satisfy the requirement of incorporation as we have said for us to be valid exclusion clause will be valid it must have been incorporated in the contract it must have been created in the contract and when we say it must have incorporated in the contract that is simply to say that uh as a matter of fact it must be an integral part of the contact it should form part of the terms of the contact the content and a very good case to illustrate this is the well-known case of a chapel thing against the uh barrie unity which is known by every student of law of contract in the common law world and that case i didn't have told uh i knew previously before that uh what happened was that we had like the the city council equivalent of maybe the district assembled the metropolitan assemblies that we have and they were in charge of a  in their communities so the council had chess holidaymakers so those who wanted to last by the beside could actually hide now the chairs have been packed and on this particular occasion uh what happened was the chairs have been packed and uh they had just written uh the price that yes uh this uh chest for a high and that you have to take a ticket before you can actually uh get it now when you get the tickets at the back of the tickets or like i mean on the ticket there are writings to the effect that the council will not be heard liable for any accident or damage arising from the high of the chair in other words if you hide the chair you sat on it it collapsed and you got injured you could not hold the cancer liable for that so these words were written on the ticket so our friend chappelton i hired the chair followed the instruction spelled out by barry urban recons that and unfortunately for him uh the chair and when the chair collapsed he sustained uh in and he got his lawyers ensued the very uh uh uh urban district council now when the council was sued the council put up is that well they are not as well disputing the fact that the plaintiff might have on the chair collapse and sustain injury nevertheless they are very much aware the fact that on the tickets which was given the plaintiff there are west there are inscriptions on it to the effect that the company i mean that is the the cancer accept liability for any injury or damage however it arises so that was the defense that they were trying to put up now there eventually the exclusion the trial the county courts the county court in barry uh seem to have agreed with the council that yes uh despite the fact that what happened was an accident resulting in the injury clearly the cancer was escapated the cancer could not be blamed because the words were quite clear on the ticket that the cancer was prepared to accept liability for any injury so that was the the holding of the county court the plaintiff was definitely agreed and he appealed the matter to the next level of the judiciary and when the matter came before the the appellate courts the court held that their tickets on which the west uh supposedly the exemption clause which the cancer is supposed to take advantage of the ticket was a mere voucher or receipt for the money paid for the high of the chair and for that matter the conditions or the the weddings which have been written on it will not be considered as a forming part of the contract because mind you you get the tickets after you have paid for the chairs so you are giving like the taking that yes uh you have but the court was trying to say that if you look at the way things were organized uh you could uh actually of uh of course they said okay if you look at the park the pal where the palace the notice was there saying that yes there are the chair is for uh i did a two dime that is what was written but the notice did not include like uh the words that if uh you take the chest for two damn then the council is not prepared to accept any liability the the the the purported uh limitation or the switching clause was actually uh written on the ticket yeah so that was it so the take away was that the courts came to conclusion that the exemption clause could not be considered as forming part of the contract because the plaintiff got to know about it after the contract and not doing a contract so that is the point that for clause to be appealed as valid it must be incorporated in the contract and being operated in the contract means that it must have been brought to the attention of the party either before or at the time of the conduct and after so this brings us to the very important question that in uh which ways may the requirement of incorporation is satisfied in other words how can we prove that the exemption or the exclusion clause has actually been made part and parcel of the contract well even the case law in the literature this may be done uh in one of three main ways as it were my signature by notice or by cause of dealing so let's take uh this one after the other and say a few ways about them so incorporation by signature that is we are dealing with signed documents uh where the exemption is contained in a signed document then the position of the law is that in absence of fraud or misrepresentation a person who will find a document is deemed or considered to have uh agreed to what augment is saying so that is why we have to be careful when you put your signature on the document you have to note that it means that you have accepted to be bound by it and a very good case uh which uh you are right is the case of a restraint against a grand cop now in the case of uh lestrange against graco limit the plaintiff bought cigarette vending machine and she was given a document to sign although they were smaller characters but they could still be read she signed without really reading and when she got this correct vending machine installed in her cafe in no time it proved to be defective not functioning well so she sought to actually uh sue the seller and company which so did place reliance on an exemption clause in the document that she the buyer had signed and uh the buyer sought to say that well i didn't know that i was going to be bound in this way and the seller could not be here liable now lord justice uh scratten who uh was part of the panel who decided he was a great couple limited in english called appeal made the point that quote the plaintiff having put a signature to the documents and not having been uh induced or included to do so by any fraud or misrepresentation cannot be heard to say he's not bound by the terms of the document because he has not read unquote so his lawsuit was saying that you not having signed no you know having read the document is not important what is important is that you signed and then when you sign nobody uh defrauded do nobody track you or nobody deceive you into signing or nobody subjected you to duress or any uh other uh improper pressure for you to sign so so far last you have signed whether you read it or not doesn't matter so you are bound by the document says so that is the point about the string against the graco and of course we have noted already in the case of a wilson and ruby when we're discussing uh the the the early part of the terms of uh contract especially the parole evidence [Music] uh where the court among other things are noted that mere negligence in not reading a document is not excuse from the effect of the the document that you have uh signed now that is just the general rule so to this general rule we certainly have a respectable person and uh one exception is that where the person signed the document as a result of fraud or misrepresentation that is to say you were deceived into signing the document if that is the case then the fact that your signature is on the document will not mean that you are bound by what the document is saying and a very good case to illustrate that is a well-known case of a curtis against a kamika cleaning company limited where a woman took her wedding gown to the laundry and the wedding gown had certain uh decorations as beasts in sequence now when she gave the gown to the laundry attend the attendant gave her a document to sign and she inquired from the attendance if like what the the purpose of that document was and the attendant told head that well by the document that she was signing the company was saying that it was not prepared to actually accept uh liability uh for distraction to the the beast and the sequence that was what the attendant told the woman so she signed meanwhile the rare effects was said that the company was not prepared under any circumstances to accept any liability at all for any distraction to the address now later on when the woman came to collect the breasts it was badly stained that's right so she sealed the laundry company then the laundry company sought to place a reliance on the so-called exemption clause which the woman uh signed and the court held that well landry or the cleanest were not protected uh by the exemption clause because the the true extent or the true scope of the clause had been misrepresented to the woman because the woman had actually enquire at the time of signing that please and this thing that i am signing what is their purpose do you tell her that well we are saying that should anything happen to the beasts and sequence then the company could not be heard liable so that was the understanding with which the mind sign but the company really meant more than that it meant in fact that should there be any distraction at all we are not going to be heard liable and the court said that well in safaris the true scope or effect of the same same clause had been misrepresented to the woman the signature on it would not actually make her a liable or could not bind her to what the document was so you see how catches against chemical cleaning company limited is an assertion to the case of a strange again graco limited of course uh related to that is play the same thing another way of putting that exception is the plea recall the the non uh s factor uh so known as factoring so the woman was trying to say that yes uh i have signed the document but the document i've signed is of different character or nature from what i intended to sign a document i intended to sign was a document who says that i am assuming risk for any distraction would be happening to the beast and the sequence and not certainly saying that i agree with the company that should there be any distraction i'm not going to be heard liable so the plea of non s factum is another way of saying that despite the fact that my signature is on the document i should not be held bound by the document because it is not my act it is not my true act it's not my true act in the sense that i did not intend to actually sign a document of such a nature let us keep that in mind and that was why the interesting case of sanders against an angular building society otherwise reported garlic and lee an old lady was persuaded by her to sign a document conveying her house with her nephew's friend now the old lady had believed that she was signing a deed of gift to her nephew now she had not read the document because glasses were broken yes although it was held that the document was valid but the courts made some useful points that the signed documents before you can be exclusive from the signed document must be fundamentally different in effect from that from what it was thought to be so if you can show that the document that you sign is of uh a fundamentally different character from what you thought you were signing then you complete uh the plea of non-est factum uh non uh s facto and that actually uh available and secondly before you can also rely on none as a factor so as to escape from a signed document uh you must prove that you are not negligent in signing the document you're not negligent in signing the document because if you look at the uh the woman who signed uh the documents they did or give kindness against angular building society you notice that there was negligence what was the negligence you know very well as i am sitting here my glasses are broken so i have to find time and go and get a replacement of course i don't know whether that will apply to me but uh on a more serious note the woman glasses were not there meaning that her ability to read was impaired and yet she went ahead and signed so that was the negligence so if it had not been for that negligence then uh none s factum could have been successful so as to release it from the document that uh she signed yeah there are uh a a plethora of cases concerning a known spartum can look at the case of enchroma against ewa the case of a wilson ambrobe and then a cow again the story where it does emphasize that the mere negligence in not ready it's not the basis for uh invoking known s factor now so we have seen how the exemption was pushing clause can be said to have been incorporated by means of signature so that where the party against whom it is being invoked signed the document as we have seen uh the exemption clause can be taken as having been incorporated in the contract that is fine what about situation where the person has not put a signature so we want to look at incorporation by notice in other words where the exemption clause does not require signing does not require same answer then the position of the law is that you must have been given reasonable and sufficient notice of the existence of the clause in other words you must have been made sufficiently aware that the samsung class was actually meant to be part of the if that was the case then uh the exemption clause the exemption clause can actually be treated as forming parts of the terms contract that so let us keep that in mind and a very good case to illustrate the point that where the exemption clause does not require signature then adequate notice must be given to the other party before or during the time of making the contract well known case of uh parker against south eastern uh railway uh parker against southeastern very interesting he decided in 1877 what happened in parka against south eastern railway well there plenty in that case deposited a back in the cloakroom at the railway station you've got the railway station you have like a place that you can live like maybe your staff there and she was giving i mean he was giving tickets uh a ticket and they take it with the number uh i mean on it which he was given and had a date and wes at the back uh and and the west where that on the front of the ticket they just written see back so they take it you have like the ticket it's written here see back meaning that look at the back of the ticket for certain writings so that is uh uh what happened and what was written back if you look at the things written at the back among other things uh it was stated that quote the company would not be responsible for any package exceeding the value of 10 pounds in other words uh they have written at the back of the ticket that if you leave your staff in the clock room and anything should go wrong you cannot let the company pay more than 10 pounds meaning that if the value of if the value of what you are putting in the cloakroom exceeds uh 10 pounds and you have to actually uh make sure uh that you don't put it there because the risk that you are taking if anything go wrong the maximum compensation you can get is just 10 pounds so that was what was written at the back of the co of the ticket now the plaintiff in this case did not really did not really read the tickets of course uh not only a packer a good number of us we don't like reading especially only when we bite having good time to we don't bother to read the the user manual we just start using it maybe it's a behavior we need to check so that we start reading before we start making uh avoidable mistake so uh parker did not read the ticket and parker's bag was worth 24 uh uh pounds a little over that it got lost and when they got lost uh parker decided to sue the railway company and when the railway company was sued it placed reliance on the west at the back of the ticket and the west at the back of the ticket of course was not an exemption or exclusion it was a limitation clause limitation clause in the sense that the company was saying that well if it will be held liable for any breach or any missing item at all not more than what 10 pounds but in this particular case the missing item was more than 24 pounds so uh at the trial there it was required in doses that is the judge sitting with the help him to decide the questions or facts so the jury is a trial fact and the judge will give like the direction so that directed the jury to consider whether the plaintiff had read or was aware of the special condition on the ticket upon which the bags have been deposited now the jury answered in the negative that is to say that the julie said that well in regard to the circumstances the plaintiff was not aware that the bag that he deposited with the company it was governed by the condition that if anything went wrong the company could not be held liable for more than uh 10 pounds as it were so that was the verdict of the of the jury and on basis of that the fire court entered judgment in favor of the plaintiff now the railway company appealed they appealed the decision and when they got to the english court of appeal the english court appeared came conclusion that the direction which the trial judge gave to the jury was wrong direction had not directed properly on the questions that they needed to investigate and answer and in the view of the the the cough appeal the important question which needed to ask for the jury to answer was whether the defendant had done what was reasonably sufficient to give the plaintiff notice of the condition in other words whether the defendants had made the plaintiff aware that the exemption cross existing if he had made the plaintiff aware that the same thing was the defendant could take advantage of the exemption clause so that was the the the class of the of the matter and of course the court directed that there should be retrial retrial means that the court of appeal did not answer as whether the exemption clause in this particular case was valid or not but all that it said was that the code below that the trial court had not asked the the relevant question for the jury to answer so there was a need for the matter to be remitted back to the trial court for retrial so based upon the question that the court of appeal thought ought to have been asked in the court below the cuts of appeal was saying that if the plaintiff diary mr parker was aware of the conditions at the back take it then he'll be bound on the other hand if he did not know he would still be bound if he was giving the ticket in such a way as amounted to reasonable notice in other words what was crucial was that having regard to the circumstances could it be said that reasonable notice enough information i'll be giving to the plaintiff regarding those west which amounted to the exemption clause and on that note it is instructive to quote the victim of lord justice melish lord that's his marriage rendered himself as follows i am of opinion therefore that the proper direction to leave to the jury in these cases that if the person receiving the ticket did not see or know that there was any writing on the ticket he bound by the conditions that if he knew there was writing and knew of that the writing contained conditions then he's bound by the conditions if he knew there was writing but did not know but did not know but did not know or believe that the writing contained conditions nevertheless will be banned if the delivery of the ticket to him in such a manner that he could see there was writing upon it was an opinion of the jury reasonable that the writing contained conditions unquote so admittedly it comes back to what they call like objective tests or the position of the reasonable person would an official bystander for example consider the answers as being adequate so as to uh let the other party be aware that those words actually existed and they were meant to form part of the country which was being concluded so that was the uh the cracks of of of the matter so it emphasises on reasonable notice not actual notice and that is what's the case of thompson against the london uh uh came to uh that that the notice we are talking about we are not talking about uh actual of course if there's a natural notice then don't miss it very easy but it is reasonable and noticeable it makes it objective rather than test because his actual notice then it becomes subjective someone a person i didn't know i didn't see it but if we say it's a reasonable notice then it is a matter of what objective tests so let's pay attention uh to that and that is why i would like you to contrast the case of thompson with the case of a taunting shoe lay a packing because the facts are very similar but the courts came to different conclusion so if we look at the thompson against the london midland and scottish railway for example in that case the ticket indicated that the conditions of the contract could be seen at the state office that is what the ticket stated that yes if you wanted to know conditions of the contract go to the station master's office or look at the timetable now the assumption clause was in clause five five time table uh and if you pay a little bit of money maybe you will get a copy of the timetable so that you read it and a ticket itself only costs two and six pence so in the uh given those circumstances it was uh held by the court that reasonable notice have been given and as i indicated the test is objective and it's not subject for that matter it is quite irrelevant if the affected party is blind or illiterate or otherwise unable to understand it of course that also seems harsh and if you look at the more recent legislation for example if you look i recall like the disability uh if you look at the persons with the disability act for example you would that the cuts will rise differently now when the court will have to for example decide whether enough i'd be done to bring an exemption clause to the of uh to open to attention of what you call it a person who is blind or a person who has a hearing problem and the hearing problem here especially if you go to our you know lower sessions i suffer and credit here or second sometimes they have a recorded message and they are making some announcement and and that can also be a way of giving notice about satanism so where a person is uh for example suffering from a hearing impairment how do you expect that person to actually uh know about the existence of the exemplar which we are saying by uh word of mouth that's why as i said these cases actually uh old cases but if you look at our 2006 like the persons with disability acts uh 2006 at 715 certain uh protection has been given to a person who suffer from beerus disability and for that matter it be different how the court may have to interpret some of these things especially so where the contract involves a person suffering from some of the disability and as i said if you take cases like thompson again land in midland scottish this was 1930 case and in those case in those days personally right had not properly been reported and as i i told you in ghana 2006 we have the persons with disability act at 715 and it gives a virus protection to a person with disability and that is why i think that some of these rules may probably have to be recalibrated or re-interpreted when we are dealing with a contract involving person with disabilities so i mean that was just for your information of course if you look at the the the the english case of idea against the jawa like a notice containing exemption clause or stuck on the windscreen of a car that well passengers travel at their own risk just imagine you went to a lottery station and there's a notice boldly on the car that well passengers travel on their own uh on at their own risk but that was the situation in jia and cujaw and notice was in english and a personal concern here was a german persona who could not speak english now during that trial i was made with the court held that he was not bound by the cross because being someone who could not speak english reasonable k had not been to bring it to his attention so if you look at it this actually is a departure from the thompson case which we have just seen and if that is so if you go to hotels if you go to restaurants or other public places in which they have uh know those writings you pack your car at your own risk of vulnerable left in the car and so on and so forth so question is what about illiterates well the argument will be uh so far as english is an official language [Music] it is no thanks to you if you cannot you know read and speak if you are willing to engage in certain transactions you have to make a decision as whether you want nobody has asked you to go to a hotel or go to a restaurant and for that matter if you're good of course you also have a lot of thought to do it later on it's something you call the occupies liability so the the owner of the premises has got a responsibility i let visitors or those who are coming to the promises about or hidden dangers but quite apart from that he doesn't have any such obligation yeah so that is something that we may just have to go and as we speak now the law reform commission is uh trying to uh conduct a study as whether we can have our own unfair contract terms legislation in which we make provisioning for some of these matters now in the course of uh this course i will make available to you a document from the law reform commission to the faculty which the dean referred to us to look at it as our input but having said that it best emphasis that part of the responsibility of giving adequate notice about the existence of exemption or mutation clause is that attention might be drawn to any unusual clause in other words where the exemption clause is not something which is quite usual something which can be taken for granted and people don't even have to if you like think a lot about it then the responsibility in terms of what you need to do to bring it to the attention of the other party is actually high so therefore the more unusual the exemption close the greater the responsibility to bring it to the attention of the other party and that was why in the case of a thornton against julian parking it was stated that a person who drives his car into a car park might expect to find in his contract a clause excluding liability for loss or dummy to the car but special notice should have been given of a clause reporting to a school liability for personal injury in other words if i pack my car if i go to a car park and there's even a disclaimer notice over there i can reasonably take it for granted that the management of rubrics in china the car park is simply telling me that should there be any loss or should there be to the vehicle that i have packed over there i am not going to for a minute yeah so uh a lot we have to be done to uh bring the unusual clothes to the attention of the person as i said if i pack my car i can reasonably take it for granted that uh the the owner of the promises is saying that well if something should happen to the car or something is lost and so on he or she is not going to accept responsibility that is fine on the other hand i did not expect that the person would say that he cannot guarantee my personal safety and that if anything should happen to my person he or she is not prepared to accept responsibility if that were the case that is something unusual unusual in the sense that we don't often see such uh uh you know such a disclaimer or such exemption would be and that is why taunting against william pacquiao is saying that if the exemption clause you are trying to include an encoder is more unusual it's more uncommon then you need to do more bring it to the attention of the other party and on that note i would like to also remind you of the interesting case of the inter photo picture library against the starlotto visual programs a 1989 decision of the english code of appeal which reinforces the point would you on behalf of two in the uh taunting sri lankan case and if we look at the the inter uh photo picture library limited against a lotto and visual program the plaintiff ran a photographic transparency lending library and the defendants were advertisers so there was a telephone station between them and as a result that the plaintiff delivered to the defendants 47 transparencies together with the printed note containing nine printed condition now another condition called condition number two provided that the transparencies were to be returned within 14 days failing with a holding fee of five pounds a day and v80 would be charged after four weeks the transparencies had not been returned fire upon plaintiffs sent an invoice to the defendant for three thousand seven hundred and eighty three pounds uh fifty pence as a holding charge for the transparencies now when the matter came before the court the court considered the issue of weather condition number two was sufficiently brought to the attention or notice of the defendant so as to make it a term of the contract and the courts concluded that no it had not been brought sufficiently to the attention of the have not been brought as civilian to the attention of the of the other party for that matter uh it was not considered a term of a contract and the court of appeal made the point that the more unusual the clause the greater the notice required and again where are the exemption clause there are some signature of the party notice of that term must be communicated to the other party before or at the time the contract is made and not after and of course uh taunting again they truly makes that point and it's a very interesting case in terms of like the the facts it does like maybe let me see kumasi we don't have like the i'm not aware of a car park in kumas what is the equivalent of the the car park at the international probably the new airport they are doing commercial may have that but yeah where you know you enter the car but there's a machine there you put a coin in or this time they have like what you got that you press it and then a token will come out so very similar arrangement happened in the taunting again the shoe lame packing limited so the plaintiff in this case made the contract to the car company inserted a queen in the ticket machine and the ticket was issued afterwards and our conditions were displayed inside the car park so if you enter the car park you have a lot of conditions in terms of uh what the company who accept and what the company will not accept and all that so but the fact of the matter is that you don't become aware until you have entered the car park and because you don't become aware and you've entered the car park the court was the view that uh the notice of it attention before or the at the time of making the contract that is the the point is just just like the chapter there in bahrain ubc uh over there to us we notice the notice of the same thing cross came after the contact it should be before or at the time or put differently the notice might be contemporaneous for the contract in other words the notice of the reasons of the exemption or the limitation should be given a design at the same time that the contract is victory as happening in the case of olay against uh ma uh borough court limited a very uh interesting case especially uh for those of you who like uh using hotels when you travel in ole and marlborough are called limited decided in 1949 we had like a husband and wife like a couple they visited the hotel as guests and as is usually the case you go to the hotel you go to the reception and then you are set up you pay you are shown your room they were their bedroom and they saw later on on one of the walls of the bedroom a notice stating quote writers or not proprietors will not hold themselves responsible for articles lost or stolen unless handed over to the managers for safe hazard beyond good i mean this is quite uh this is quite uh common in the uh virus uh hotel so all vala bush be handed over i mean that is what we usually see so similar thing uh happened in olay now eventually the wife uh closed the self-locking door of the bedroom went downstairs and hung the key on the board in the searching room and while she was away he was wrongfully taken by a third party who opened the the bedroom door and stole her face some of her valuables and they sued the hotel and when the mata came to court the court held that because at the hotel you know put up the argument that that is why we warn you that you should have handed over your vulnerable to us we didn't do that so you're not going to be held liable and so the court needed to decide the the worst the worst on the walls of the hotel room can they be considered as forming part of the contract which was made between the couple and the hotel so what needed to be decided was that at what point was the contract made and the call to the view that the contract was made at the point that they were being given the room that is a reception point and since at that time they had not been told or they had not been given any notice uh that the exemption clause written on the walls existed it could not be treated as following part of the of the contract and for that matter uh the notice or was considered as having been given after the contract and did not form part of the contract so

Transcript for:Understanding Exemption Clauses in Contracts

Transcript for:
Understanding Exemption Clauses in Contracts