yes so uh welcome back uh strangely the the line went off but then we are able to continue yeah so i was just telling you about the point which the court had made in the only against my borrow code limited that you must give notice of the same clause either before or at the time of making the contract and not after so let's keep that in mind okay so of course the same uh points applies to what you call like the exhibited notices exhibited like notices if the notice is meant to form parts of contract then it should be brought to the attention before or the time of making the contract and not after but uh quite a far from uh incorporation by notice exemption clause or exclusion clause does not require signature may also be incorporated by cause of dealing in other words if between the two parties certain practices have gone on for quite some time and let's suppose that this is not a one-off transaction we'll be doing transaction every now and again is more the same transaction that they are doing in that case because there have been previous cause of dealing between them uh the courts could uh say that the cost of the previous course of dealing can be considered as being a means a great person could be said to have accepted that certain exemption clause should be the parcel of the contract uh being made has happened in the case of expanding against brazil where the court emphasized that if you are talking about the previous uh course of daily then it is important that uh the cost of dealing must have been consistent being consistent means that the parties must have dealt with each other respect of that particular transaction in that same way for a long time not that uh maybe just a run-off or you have an inconsistency here and there and that was why in the case of uh marketing against david uh migraine limited the plaintiff had his scholarship finance ship and the ship was whistled into a rock and sunk plaintiff's car was lost and he sued for the value of the car now when the defendant was sued the them place reliance on a condition in their contract of courage which purported to exclude liability for negligence and during the trial the court looking at the evidence made the finding that it was the practice of the plaintiff and the defendant to require consignors i mean now it was practice of the defenders of the dealers to require consignor that is what you are giving their consignment or goods to them to sign risk notes which contain the conditions but on this particular occasion the defendant's representative forgot to ask the time the risk notes so the plaintiff had consigned a boost on a number of previous occasions and previous occasions the risk note was signed sometimes he was asked to sign a risk note and maybe if there was forgetfulness and it was not susan he had never read there is no despite the fact that in signing on many occasions and he didn't know what conditions the rest note actually contained so the defendant put up the referendum because of the knowledge gained by the plenty agent on previous occasions when he has signed a wrist note plenty should be bound by the conditions printed in the note despite the fact that on the occasion in question he had not signed one now the courts had to make a determination as to whether there had been a consistent cause of dealing between the parties and of course said that no uh if you look at what has gone on the the practice was not a lot of inconsistency here and there because there were times that the plaintiff agent will be asked to sign at that time that i do not sign for that matter uh the court could not uh come to conclusion that because of the previous course of dealing between the parties that should be considered as being sufficient to have given notice to the plaintiff regarding the conditions or the exemption so please let's keep that in mind maybe if you are dealing with the uh a consumer right if you are dealing with like an ordinary consumer uh the previous cost of dealing especially the consistent previous course of dealing uh may not have to be just one or two it may probably have to be more before the courts will come to conclusion that uh the previous course of healing uh exists and if you look at the holier against a well just three or four transactions over a period of five years was not enough for the court to come from wishing that a previous course of dealing actually existed between the parties and it needed to be more it needed to be more yeah so what happened in the uh rom rum julia against rambla mutus i actually wanted to a minute yeah yeah there was something in that case i wanted to code for you as i indicated to you in the beginning but and then uh importantly the court was making the point that with respect to consumer contract before the court will come to conclusion that there have been a previous cause of dealing and for that matter uh that can take care of the exemption clause more are needed to be done now we come to the last aspect of exemption was question clause uh as we indicated for education assumption clause we have health there must be clear evidence that it was incorporated it was incorporated in the contract that is made part of the contract and we have seen how that works out that is if you are dealing with the required signature then the fact that your signature is there means that you have accepted that is form part of the contract the only being where you were deceived or where you were tricked into signing so that is a different matter and then we have also just seen uh where your signature reply then the law says faith or reasonable notice should be given to you regarding the existence of the exemption clause and this should be before or at the time of making the contracts and it should be contemplating us and we have seen a lot of that effect and finally we have also noted that it is possible having regard to the course of dealing before between the parties so far as there has been a consistent cause of dealing between the parties over a reasonable period of time it it will be enough on basis of that for the court to come conclusion that yes because of this consistent previous course of dealing it can be taken for granted that you are very much aware of this exemption clause or that exclusion clause now we come to construction or interpretation of exemption plus and by application or construction of exemption clause we are referring to the fact that when a bridge contract has actually occurred and a party is trying to rely on the excruciating class in order to escape liability or in order to reduce its liability the court we need to interpret the welding of the exemption clause in order to see where the cross covers the bridge which has okay does it cover the bridge which is okay i mean that's like like conditional law for example we know that and that if anybody is making an allegation that something done or not done uh contravenes the constitution and is inconsistent with that matter is not a void it's an is an invitation for the supreme court to do even like interpretation to interpret the relevant wording of the constitution in relation to whatever alleging to be unconstitutional to find out whether it agrees with the test of the constitution or it does not so in the same vein when it comes to construction interpretation of exemption or limitation clauses the court we need to construe interpret the wedding and find out if when it is in it is controlled it can encapsulate or it can encompass the particular uh event or situation of bridge which is okay yeah so that is very important now in terms of limitation clause when the court will have to interpret the courts are a bit more friendly towards that exemption was switching closer so a last straight approach is taken in interpreting limitation clause then exclusion clauses uh that is uh to say that the cuts are better disposed to look a bit more favorable towards limitation clauses than exemption or squishing clause for obvious reason but assumption was pushing close one person trying to say that under no circumstances can i be held liable for anything for any breach but for limitation clause the person is not saying that i'm not prepared to be held liable at all all that he or she is saying is that yes i can be here liable for breach but only up or not beyond that point so that is if you like a much more reasonable just like maybe like the insurance policies and things like that so the cuts are a bit more friendly towards that and that was why in the case of a alsa crunch fishing company limited against a marvin fishing company limited simon was attends to state and i quote clauses of limitations are not regarded by the courts with the same hostility as clauses of exclusion because there is not they must be related to other contractual attempts yeah so this actually gives you a clear sense of how the courts are more better disposed to exemption i mean to limitation clauses than uh than exclusion or exemption clauses another rule which the court makes use of in trying to interpret exemption clause is the principle we called contra for pharrentom the contra prophalentum rule that is a another rule the court uh makes use of in trying to interpret uh exemption uh clause and i would like us to look at the page 274 of the jail pool and i have shared uh jill pool uh with you i've shared the pdf for your poetry if you don't have money to buy the hard copy you can still i have it so if you look at the page 274 of the pool for example uh you know there are times that any ambiguity in exemption clause will be resolved against the party seeking to rely upon it what does that mean ambiguity ambiguity simply means that the particular writing before you is capable of bearing more than one meaning it may have two or three or possible meanings and the meanings may not be the same some meanings will be more favorable other meanings may be unfavorable so therefore by contra preference in latin simply means that against so affair prophet prophet the person who is asking for exemption clause or the person at whose instant the exemption clause plus was included in the contract where you have several possible meaning that is the ambiguity we are talking about the samsung plus can bear several possible meaning some of the meanings are favorable to the person at whose instant the exemption clause was included and some of the meanings are not favorable to the person at whose instant the same same clause was included now where that is the case then according to the contract preferential rule the court adopts the meaning which is disadvantageous or which is uh detrimental to the interest of the person at whose exemption clause is included or the person who is seeking to take advantage of the exemption clause so as to escape liability so as to minimize liability the the court should adopt one of the competing meanings which is more unfavorable to him and a very good case to illustrate that is a case of hurting against trafalgar insurance company limited very interesting case in hurting against fafa insurance company limited what happened was that there was a car insurance policy and of course a car insurance policy reminds me of how insurance companies are very uh yeah they're very fast when it comes to taking money from customers pay your privilege those of you who see my car you'll notice that uh about two weeks ago the the back of my car there's a bit of like a throw throw driver run into it and run away i have comprehensive insurance from sic and i pay a premium of i think about nine thousand gun receipts but inside of the uh you know just hurrying up the process for me to get money and get it facing know that i'm still here trying to sort things out with them now let's come back to curtin against trafalgar insurance company limited as i told you there was a car insurance policy this policy excluded liability for damage caused or arising while the car is conveying any load in essence of that for which it was constructed you know if you look at the car the car has what they call like the the gross weights and things like that the the rare capacity of the car the load that it can carry so the insurance i had a close and say that well if you use the car you carry more load than it will design then we are not prepared to cover you for any accidents which me okay at the time of the accident there were six passengers in the car with sitting accommodation for five so five could sit according to the design of the car and the insurance the insurance that the insurance company sought to deny liability so to run away claiming that this was a load in essence of that for which the car now before the court could resolve this corning drum this difficulty as whether the insurance company was right in trying to because you have taken six you have exceeded the capacity for which the car was made and for that matter we are protected by the samsung plus we are not going to pay it was necessary for the court to interpret uh the meaning of the word load because if you look at the clause you know if you look at the clothes uh where'd my casa is let me put it so if you look at i put it in red you can see that the red yeah so if we look at the clause it said that while the car is conveying any load in essence of that for which it was constructed to any load in essence of that for which it was constructed what is the meaning of lord lord in this context is ambiguous and because in the sense that it can mean more than one thing lord can mean passing yes load can mean cargo so what is the meaning of load for purpose purposes of this clause who says that there are uh avoiding liability for damage cause or arising why the car is conveying in essence of that for which it was constructed now the court held that the word load covered only cases in which there was a specific weight that must not be exceeded as in the case of loris or vance it is very interesting to pay attention to the victim of a lord that says rumor which i could and that was the more reason why i came here uh lord that's remar speaking quotes i think that it will be most regrettable if a provision of this kind were held to have the force for which the defendants contend it will be a serious thing for motorists involved in coalition if he were told that the particular circumstances of the accident excluded him from the benefit of the policy i think that any clause or provision that to have the effect ought to be clear and unambiguous so that motorist knows exactly where he stands this provision is neither clear nor unambiguous if applied to a private mutual car have not the least idea what it means so simply put you see that where the court was trying to say that in the event of the contract having uh no meanings then we are going to adopt one which will be to the disadvantage for uh the person at whose uh instant the exemption clause was included now what about uh the situation uh in terms of uh library or negligence of what the the other cases that are recited in the material but the case of andrews against singapore uh there was an ambiguous way that i like you to and then include that as well now let's look at exclusion of liability for negligence and where there has been an exemption clause trying to say that will not accept liability for any negligence that we may otherwise be guilty of or what can be brought up against us now additionally the way the court goes about that is to limit the scope of the switching clause and construe them so that they cover only contractual liability unless they just expressly assemble negligence in other words from your ghana liga system and ligand method and i hope that you are taking your elegant system without serious you know there's a topic we call division or classification of law which you have learned and i'm sure you are across what you call the uh uh you know concurrent uh liability you can have the same set of facts the set of facts may amount to a breach of contract at the same time may be able to bring a cause of input maybe for negligence and things like that now it may so happen that in a contract a person might have included exemption clause and instead of just focusing on uh maybe excluding himself from any liability for breach or limiting his liability for breach the person may for example want to extend the protection which he wants the contract to give him and protests won't even go beyond his contractual duties to other transportations so that is uh what we are talking about and that is close apply in respect of negligence well a very useful case to consider is a case of canada steamship lines limited against our and in that case lord martin of heritage laid down a test contract construction interpretation tests to ascertain whether the clause covers negligence liability in other words if you want to know whether the exemption clause can be interpreted to give protection to the person also from even negligence we need to be guided by the the guidelines with lord mortein of heritage are propounded in canada steamship lines limited against our initiative too and quote their losses think that the duty of court in approaching the consideration of such clauses will be summarized as follows one if the clause contains language which expressly exempt the person in whose favor hereafter called for preference that is a person who at wilson stand the zombies was included from the consequences of the negligence of his own servant effects must be given to that provision two if you express reference to negligence the court must consider whether the words used are wide enough in their ordinary meaning to cover uh negligence on the part of the defendants of the preference if a doubt rises at this point it must be resolved against the other party that is the preference the party at whose insurance was included and three if the words use are wide enough for the above purpose the court must consider then whether the head of damage may be based on some ground other than that of negligence yeah so at least what is important is that uh the court is giving us some guidelines as to how in you about in trying to make a determination as to whether exemption clause can extend to negligence or cannot extend to negligence in our particular like us to look at the interesting case of our that slid against a handing laundry uh limited what happened in the other seat uh against the handle under limited well there are plenty of left hand uh large average lining handkerchiefs for the defenders we watch landrieu lost the hangar tips but then an ascent for damages for two pounds one challenge had been because of the replacement of the hangar tips the defendant sought to rely on condition three of the tens on which the handkerchief has been accepted and this provided that quote the maximum amount allowed for loss or damage articles is 200 times the charge made for london calculated as uh levine silence uh five down here now it was out that only liability that will arise from the loss of the handkerchief by the defender was by establishing that the defendants were negligent they owed only a duty to take reasonable care of the handkerchiefs so that there could be so strict there could be no strict liability for those and consequently the condition could be applied will limit that condition negligence liability and damages payable to the plaintiff but i would like you to pay attention the the the short opinion of master of the rules at the time i'm not talking about lord daniel of course then also became most of the rules but he's not only the master of the rehearsal it refers to the president of the english world of appeal so as at the time that this case was decided it was lord green was the master uh of the rules and i would like you to pay attention to his opinion because of time uh we cannot actually uh discuss order because we need to be bringing a class 2 and then very soon yeah another uh point which we need to touch on or what you need to discuss with respect to the application of the exemption or squishing clause is what is known as the doctrine of uh fundamental uh bridge the doctrine of fundamental breach now the fundamental bridge is a principle which has actually engaged the court for quite some time uh until the case of uh photo production limited against the curriculum limited was decided in 1980 now fundamental breach simply means that there has been total non-performance that is as we know from conditions there's a total known performance or there's a serious breach which destroys the whole contract so any of these senses could mean fundamental breed so as a doctrine emulation explosion or exemption clause uh before 1967 especially the doctrine of fundamental breach was a major weapon in dealing with exclusion clauses and how was it the approach used to be that when there's a breach of contracts and a brief in question can be interpreted as a amounting to fundamental breach in the sense that there has been on performance especially by the person uh at whose instance the exemption clause or the person who stands to benefit from the exemption clause if he is a guilty person in terms of having not performed at all what he was supposed to do under the contract or there has been a serious breach which goes to the very foundation of the contract that would also be treated as fundamental breach then in that situation you will not be allowed to take advantage of the exemption clause the reason being that the exemption clause is part of the contract and if there has been a fundamental breach is a reproductive breach and automatically if the contract is repudiated when the conqueror has come to an end everything in it has come to an end during the exemption clause and you will not be allowed to take advantage of it yeah so that used to be the point to look at the case of a castle's arrow limited against wallace and in the cases of the swiss atlantic and then the habit classes limited again we tank but i would like us to pay more attention to [Music] photo production against uh siko rico decided in 19 you notice that in the slide sometimes i just use cnf if i say cnn if i'm referring to csm542 and if i say e of c a i'm referring to answering on contract and so those are what i mean for in terms of the those letters that are used in the in the slides so let's say a few words about uh photo productions against before uh we will leave here and touch briefly on unfair contract terms and if there is time if there is no yeah i mean it's already three according to my watch but just before we go uh what happened in photo production against securico well uh uh briefly in a photo production against uh securico there was a contract by which the plaintiff were supposed to have the defendant provide night uh patrol security services for their uh their factory i mean just like you have like maybe like a company and they have like a private security company there was still scenario in the photo production against uh securico with the contract here uh between the plaintiff and the defendant for provisioning of a night patrol service for their factory and they were supposed to be four visit a night and of course that was going to cost money now the main dangers of paris or paris which the parties had in mind fire and theft so those were like the main things that the guard was supposed to secure company against and uh well i noticed that you have another class but because you have another class i would just say that you have to go and read a photo production against econo transport but what is really important as far as that case is concerned is that uh the house of law said that the old approach as far as fundamental british concern in relation to exemption clause was was wrong or us or to be departed from and and and for that matter uh the cut advance what you call the constructionist approach that there's nothing like fundamental breach automatically disabling application of the exemption clause no in the course view anytime there was a bridge and whether exemption clause will apply or not apply what was important was a question of reputation if you interpret the contract as a whole what do you gather as an intention of the parties can we say that from tension of the parties if this type of bridge occurred then they did not want the exemption crossed and anything in the contract were applicable if that was so then that would be it on the other hand if by interpretation there was nothing like that that if there's a bridge it does not really affect the operation of exemption clause and not that then it was not right for you to just invoke fundamental breach so as to i would dramatically truncate the operation or the effect especially close so uh the takeaway is that further production against chicago transport came to confirm uh some line of authorities that exemption clause and all that is a matter of interpretation and fundamental breach had been applied wrongly and that shouldn't be yeah so as i said because you have a class i will allow two or three minutes if you have any question and then i'll call you before i end the class see if i'll see some hands up okay so there's no uh [Music] hand up okay let me release if you if you don't know how to raise your hand you can just [Music] uh there's a mute yourself okay so since there's no question let me leave you to go for your next class so have a very good afternoon