Transcript for:
Understanding Implied Terms in Contract Law

good morning to all of you and we like to uh greet our muslim brothers and sisters in a very special aid mubarak may allah receive your sacrifices so we are having a special combined class of regular and part-time students and we would like to continue with our discussion of terms of contact so we hope that we hopefully [Music] most everything today there's one aspect of terms which we've not given a lot of emphasis for quite some time but would like to create a soft theme out of that that is a reputation of terms in general and also whether a good fit should be recognized as an implied term in every contract but that will be for our very last lecture before we say goodbye to thames so that is not what we are doing this morning so for this morning we would like to continue with what will be doing and to do that i'm going to give a quick recap so that all of us are on the same page as it were so we [Music] so we've been you've looked at the issue of uh implied uh terms if we look at how in addition to what the parties with the fundraiser have provided as a express terms for some uh reasons other things may be included as such so if you look at how a statute legislation for example may imply terms we look at examples in the case of a sale of goods contracts and then syllabus act for that matter if one suicided examples were employment contracts and we cited uh let's say like the labor act we've cited example from a contract between a transfer of interest in land and also a transferee of interest land or the landlord in that relationship how certain things are considered as included in such a contract even where the parties have not necessarily negotiated that then we also talked about how things may be implied by a custom and with respect to custom we've noted that the custom should be well established to have a notoriety there should be consistency of application within the particular uh industry in particular trade for the particular community and on that note we indicated that because of our customer law in thinking about terms implied by custom we shouldn't also leave out customer law because there are some instances that the customer law could probably be handy when we are trying to come to decisions whether a particular term may be implied by custom or not then again we and of course i cited the case of the uh party and the naga i'm sure you've read that and we also talk about terms implied by coach and terms imply by court we said that the court will try and read additional things or additional terms into the contract so that the contract will be efficacious in business sense in other words the contract would workable the assumption is that the parties entered into the contract in order to achieve a certain business papers in order for the contract to be something implementable so therefore where you look at the contract at the parties have made it and it appears that uh certain things are obviously lacking and if you don't uh provide for those things the contracts will not be workable the business purposes for which the contract was for example contracted we defeated and all that then yeah then according to the decision in the mukha case the court will say that in order for the country to work those other things which are obviously a mixing are lacking have been read into the contract so let us keep that in mind so just in case you've forgotten the mukka case where there was a dispute as whether it was part of the contractual obligation of the owner of the the dirty or the pot as to their safety or as to how safe it was for the vessel to come and talk there and as you notice eventually the course said that if we look at the contracts it is obvious that no uh business sense will be attained if there was a contractual arrangement where someone is going to dock his vessel to load and unload and the person who owned that facility they didn't have any responsibility to let the wrestler owner know that it was safe or not safe i mean that was really not workable and the course said that for that matter there was an implied term that it was also part of their contract and so therefore the terms were implied here in order to give the business efficacy as we have explained again we also observed that the court may imply terms when the court is trying to use the position of the reasonable by standard that is to say that the court is saying that when at the time of making the contract there was a reasonable bystander official bystander there who was very much aware of what the parties were doing and having noted that a certain important thing was a mixing from what the parties had done and probably the parties might have genuinely forgotten and so on and if he for example uh mention it to them that oh i've left out this one uh you know the case of liverpool and irwin will let us know that the parties will have readily uh noted or approved what the official bystander has said and said that yes of course it's only part of the contract so here the court is also trying to fill a gap in the contract using the reasonable man's position or using objective tests as it were so these are some of the things that we discuss and we move on to discuss what you call the categorization of terms of the relative importance of terms and here we also noted that uh terms of contract are not of the same importance that some are more important than others and for that matter traditionally tens were uh classified as idea condition or warranty and in a more recent time just like less than 50 years or so we had what they call like the third type the innominate team yeah so we took them one after the other just to ensure that all of us are on the same page that is why i seem to be recapping everything instead of going straight to exemption colossus but we'll get there very soon so you shouldn't uh worry so we said that the condition uh refers to a term of major importance going to the very roots of the contracts and what that means is that in the event of a breach the innocent party will be able to treat the contract as having been discharged that is as having come to an end having been terminated and for that matter the innocent party does not have any obligation to perform anything under that contract and again we also said that the innocent party will be able to sue for damages in addition to treating the contract as having come to an end i hope you remember that and we cited the very old case of uh pusad and spears to illustrate that and again we also uh made the point that uh if we look at the sale of goods act for example uh certain terms which are implied terms are sometimes referred yeah sorry for the internet which is going on and not sorry about that yeah so if you look at the syllabus app for example there are some times that the lawmaker will use the word condition for a certain types of contract let me share the screen again for you but uh it is also important uh to note that as we look at the textbook especially if you look at the words of like the uh cheshire and firefox and also answering on contracts you sometimes come across an attempt to break condition into condition precedent conditions subsequent and then subject to contract so condition president the word president means that before that is to say that that which is called the condition precedent for example should remain true or should remain uh good uh before the contract will be considered as a uh really uh taking off or coming into force that is to say that if that failed then uh the contract uh cannot come into full force and so on or the condition uh subsequent also relates to where you've made the contract and subsequently a certain situation or certain development which is supposed uh either not to arise or supposed to arise and then depend upon how it is formulated it does arise or does not arise and then you see that because of that the contract should be considered as having been discharged or as having come to an end and again we also have situations where a contract is made and you make the contract you say that this contract is made subject to that okay his main subject no johnny said that the subject to control that is to say that the contract that you have made is not if you like a full-blown contract and you need to actually look to another contract or another arrangement in order to have like the full picture of what the contractual arrangements are between the parties uh yeah so in that case we have what they call like the subject to contact and typically when it comes to let's say land transactions okay those who know about land transactions or purchase an interest in land before that is where somebody buys an interest in land and the main contract is let's say like the the the list right or the party or what they call like the liverpool collide indenture that one takes a bit of time before that is really drafted because you need to actually do a whole lot of things so but you do the initial contract for sale of the land so the initial contract for the city of the land is subject to even like the lease which will uh later on be drafted so that is to say that the contract for the sale of land it's just a preliminary it's not like the the main one uh asset where so let's keep that in mind then again we also talked about the warranties warranties are stems of relatively lesser importance or as answered on contract to say that they are subsidiary statement of facts or promises that is to say that because they are not really really important having regard to the entire contract in the event of a breach of a term which is considered as a war the innocent party cannot terminate the contract that is cannot treat the contract as having come to an end as having been discharged it only uh give a right to the innocent party to sue for damages however the innocent party will have to continue to observe the contract as if nothing has happened unlike a condition where a breach of it will entitle the innocent party to discharge the contract and consider himself as having been released from obligation created by the contract so let us keep that in mind so we also cited the the case of bethany and jai and contrasted that with the pusa then and and spear and as you notice because the singer was supposed to have been engaged to sing for a whole season and the whole season induced this province three months or more and was required to arrive six days ahead of the start of the performance that he was lit and when he arrived three days of rehearsal had actually elapsed so the management of the opera team or like the show they wanted to fire uh this singer for this singer for being late and having breached the contra but the course said that the result closed that is the clause in the contract that you come and do registers six days before the start was not a term of major importance in the sense that no go to the very foundation of the contract so therefore when it was breached it did not mean that the contract will come to an end the contract could still remain in force except that the management could sue for damages for bridge as it were so the take away from bethany and jair contrast that with positive is that a breach of a warranty means that a term of not really uh major significance or importance has been broken and does not bring the contract to an end the contract will remain in force and the innocent party that is the party who is not responsible for the bridge can sue the person responsible for the bridge for compensation or damages as well so let us keep that in mind then again we address the the issue as to whether a term is a condition or a warranty uh how can we know well if you take the contract is very much dependent upon the intention of the parties the intention of the practice an intention of the parties is regarded from the document in other words as whether a particular term is to be designated as a conditional warranty in the contract depend upon what the parties intended should be the case now this uh brings out the issue as whether it is the the west which the parties have used in the contract which should actually uh enable us to decide whether a particular term is a condition or a warranty but that one the courts have indicated that yes what the parties have said may be useful in helping us to determine whether it is a condition or is a warranty nevertheless uh that initiative is not uh conclusive is not determinative that is to say that the mere fact that the party have said that this is the condition is automatically going to let the court take it as such it will ultimately depend upon the intention of the parties guarded from the contract itself and that is why i refer do to the case of uh schooler against the wickman machine tools and because i've asked you to read that already i'm going to invite alfredo pong to tell us about what happened in the school of machines against i'm school against the week with one machine tools so afraid upon what happened in that case you can meet yourself alfred okay afraid seems not to be ready see who is there any volunteer can raise up your hand then i'll release you if you want to raise up your hand you'll notice that you have a what the reactions you can use that to click on it i'll see your hand raise up and then i'll release you okay yes yeah since 31 you've been released good morning doc yes oh father okay um in in the case of shilla aj versus wakeman machine choose i think uh shula a german company entered into a contract which we an english company and giving become the sole right to sell to us panel process in england a provider that issued all their contracts provided that it should be it should be a condition of this agreement that we can't representatives to visit six named firms each week to solid set others but where comes uh representatives failed on a few occasions to do so and so uh schuller claimed to be entitled to repudiate or obligate the contract on the basis that a single failure was a breach of the condition giving them an absolute right to treat the contract at us at an end so i felt that by the h2l that such a bridge did not entitle to repudiate since such a condition of the clock was so unreasonable that the parties could not have intended it okay thank you father but let me see just thank you father for that account now there is a case i would like you to read let me do that before the case of i'd like you to because we'll be discussing construction of the terms later on i'd like you to look at the case of the redding oh yes a minute so i'd like you to look at the case of the reading smith smith line against hansen tangent hansen dungeon chance of this so i would like you to [Music] look at that case in relation to a school against a workman machines regarding the court's uh approach as far as the the wastes used by the parties are concerned as to whether what the parties have said will be considered as finer or gonna be considered as as finer so look at that as well but they take away i mean simply is that yes uh somewheres are considered as having become [Music] a term of at a time of art or their technical ways and for that matter because they're technical ways for example if you say a condition a condition has an assumed meaning that it is a term of major importance and for that matter where you have designated a particular term your your contracts are conditioned and if we examine the content of that in relation to the entire contract and we get the impression that you might have used the weight condition in a very low sense or not in the the right sense the court will not read that as a condition yeah so that was exactly what was suggested in the scholar machine so let us keep that in mind now also ask you to look at the case of a social security bank against the sebam service incorporated so i'd like somebody to tell us about what happened in the social security bank limited against the bomb service incorporated any volunteer any volunteer as you call out names okay uh let's take a mouth before mouth before can you help us mouth do four you can mute yourself mouth are you there okay let's take a even also even you can move to yourself [Music] even tell us about social security bank maintenance service incorporated um okay so instead of telling us uh he made the child to make noise okay that's fine yeah so please look at social security bar limited against the suburban service incorporated now we also talked about a nominee term the other day and we said that a nominee also known as the intermediate term is a term uh which cannot be classified until there has been a breach in other words if we look at the other term be the conditional warranty we can look at the contract and determine that this is a condition or this is a warranty even where there has not been any case of a breach however in the 1962 the courts recognized a particular category of term which is said that one may make a mistake if you wanted to interpret it before there has been a bridge because if you look at it closely you cannot tell whether it is a condition or it is a warranty and you need that to for example wait for a natural uh bridge to occur then when the bridge has occurred you weigh the impact of the bridge on the rest of the contract and if the impact of the bridge is quite huge you say that uh the the the that term should be treated as if it were a condition when you say it's a condition a center should be treated received to a condition in which case the innocent party will be given remedies which are usually given for a breach of a condition on the other hand if you look at the impact of the bridge and it's not something really huge it's not something major something significant you say that the innocent party should be allowed to get remedies which are usually made for the bridge of the warranty so the most important thing really which i would like us to pay attention to with respect to [Music] a nominee or intermediate term it's always remember that not until there has been a case of actual bridge right of the contract we cannot really tell whether it is uh this or that and you must always wait for a bridge to okay and that is why some commentators say that they called use what they call like the wait and see approach in the hong kong fair before he determine or intermediate and if you remember the story of that case now and i call you to tell me what it is don't tell me you remember the hong kong fact is you notice that the vessels have been uh given out under chatter party charter party is a contract uh relating to the hiring or the renting of like a vessel usually like marine type of like a vessel and it was for 24 months so when they took over and started using it there were a lot of incidents of a breakdown here and there and a good portion or a good duration have been used in trying to fix the the breakdown so let's say about five weeks all together but the contract was for 24 months so eventually those who started or hired the vessel said that in the light of the breakdowns here and there and all that the close in the chat party that's in the contract which said that the ship was fitted was in every way fitted for ordinary cargo service was in every way fitted for america good service could for example uh not be considered as having to be observed because if it was filtered in every way for ordinary cargo service why is it that it had been breaking down every now and again and a good uh number of weeks have been spent in trying to fix it so they wanted to say that the contract should be treated as having been discharged as having been terminated and for that matter the clause that it was filtered in every wave ordinary cargo service has been broken by the owners of the vessel now it was in this uh contest that the matter came before the english court of appeal and uh the courts the english court of appeal are speaking through lord versus diplomat or make the point that well have the the clause fitted in every way for their cargo service and all that by looking at the charter party or the contract could not be interpreted as a condition or warranty and you need that to actually wait for the bridge which has occurred to a care and looking at the the impact of the breach on the contract the fact that the contractors for 24 months i have in regard to the few number of weeks in which they have to be breakdown and repair here could you say that that was enough to say that the contract had actually come to an end and uh the obligation by the owner of the vessel that the ship was fitted in everywhere for the medical service for example had been broken and for that matter you were in bridge well the court said that um having applying that test that is applying the case of uh looking at the consequences uh of the bridge on the contract the innocent party that is those who hide or which attack the vessel could not be said to have been deprived substantially the whole of the benefit they expected to receive under the contract because if we look at the fact that the contractors for 24 months and the number of weeks which have been spent uh when the vessel has only put into use because of the breakdown the repairs you could not say that they had been deprived in a very major way on a substantial way the benefit that they expected to receive under the contract and for that matter they they know some party or the those who charted the vessel could not be treated as being entitled to remedies which are usually given for breach of a condition and they could rather assess remedies which are given for a breach of a warranty as it were good now the other point is that uh but which is not really uh important for you to worry ahead about that there was a bit of a confusion in the case law if you look at the literature after uncomfort in 1962 there was a bit of a confusion some judges trying to say that i mean it is really bringing something strange to the common law for you to say that you cannot classify a term until there has been a breach and if that were the case then how will contractual parties be certain regarding their obligation because the point about contract the point about terms of contract is that parties should be setting regarding what's expected of them and what is not expected of them and if you for example have to wait for a bridge to occur then uh how will you be quite uh certain about what this expected of you under the contract so uh because of that if you look at the just a minute i think the my screen is going off let me just do this for you yeah so if you look at the uh the mijalis angelus case we see the court trying to go back to the traditional term of trying to say that well you should be able to look at the contract and tell us whether the term is a condition or warranty uh before there had even been a breach and not what lord diplom actually suggested in the uncomfort case but of course um there were other cases for example uh a number of cases including the sea harvey against the bremer case that is the hans node the hans node is the name of the ship for the vessel where the court uh also suggested that yes the unconfirmed approach is not something strange and it's just the reality that some contract if you look at uh the wedding of the terms and if you examine it within the whole theme of the contract you cannot actually tell their relative importance as whether is a breed is a condition or is a warranty until there has been a breach but what i would suggest to you is that you don't have to worry about the inconsistency in the students or the case law that is having a two line of case law one trying to say that let us go back to the traditional approach of whether uh the term is a condition or warranty uh which can be determined before there has even been a breach and another line of his line trying to say that no uh what on confett is saying that you have to adopt the wait and see approach is something we should not be rejected it makes sense because uh some uh contract you can't just look at it and say that it is a condition or it is a warranty well don't worry about that all that i will encourage you is to just look at the case of the reading smith against the hansen tangent which i've given it to you already and if you look at that case they reflect on whether you think that the hong kong fair approach is something uh sensible or is not uh sensible because the the reading uh reading smith case uh is opportunity for the the house of lords to er to give its blessing to the nominate or the intermediate team which had been uh introduced into english contact law by the hong kong fest don't forget the hong kong fair was a call for appeal decision it wasn't the house of lost decisions but the the ratings might enable the court to reconsider whether the hong kong fair approach was something sensible or not so please look at that case and then we take it from there and of course uh in a more uh recent or later case of a bunch against the traders uh the court uh makes the point and speaking through the mouth of lord wilbur force stated that quote i do not doubt that in suitable cases the court should not be reluctant if the intentions of the parties are shown by the contrast we indicate to hold that an obligation has a forceful condition and that indeed they should usually do so in case of time colossus in meccantar contracts to such cases the gravity of the bridge approach hong kong fair would be unsuitable unquote in other words the court was trying to say that despite the confusion uh which we have uh witnessed in some of the case law as whether we should follow uh unconfirmed or you know follow on confirm uh ban bunch uh trust uh lordouba first we say that well we shouldn't adopt a very simplistic approach and say that at all times we are following hong kong pha which is that just look at the bridge and then based upon the bridge you'll be able to determine the nature of the term no he said that we shouldn't just adopt a very a one-size-fits-all approach in some cases it may be useful to go back to the original approach where you just look at the contracts and you're able to even interpret the contract with the intention of the parties and say that they wanted this to be a condition where they wanted this to be a warrant one day has not even be an artwork is of a bridge and in other cases so where that will not work then you follow the hong kong fair approach so in the past there has been examination question where students have been invited to discuss whether uh lord diplomats are put in uh hong kong fair actually necessitates or requires that we abandon the traditional approach uh in distinguishing between a condition and a term or in classifying the term so such a question for example will require you to uh discuss these points that you are making you tell us what the condition is what the warranty is and you tell us that ultimately is the intention of the parties which will enable the call to decide what that is the conditional warranty and are you also going to explain to our the innominate or the intermediate terms within the context of uncomfortable and then you also discuss the two schools of thought which emerge as a hong kong fair answer of thought saying that no you shouldn't even know follow the unconference to another school saying that you shouldn't reject hong kong fair but depending upon the particular circumstances of the case and all that and then you conclude with the case of the radiance myth again the tangent as well as the case of the band and truss then if you do that you'll be able to produce a very interesting essay which will suffice for the needs of the question so this will mark the end of discussion of categorization of terms we are now going to start [Music] the last battle one major aspect of terms that is exclusion clauses so i'd like to take your if there's any question before i move on okay there been no question at least i haven't seen anybody end up we are going to continue okay father i see the one another person yeah i want to ask whether under the you nominate an intermediate term the hong kong fair shipping case is the let's see the required or the number one case which every other case revolves around right thank you father yeah so as you rightly indicated that uncomfort is the case out of which image the concept of innominate theme so therefore if we mention uncomfort every student of the law of contracts what will come to the person's mind first is the innominate or the um you know or the intermediate term so hong kong pha is synonymous with a nominee term or intermediate term so you are right uh in that respect so lawyers will say that if you are talking about i nominate him or uh intermediate one conveys a locus classical or is the core celebrate what the landmark is as it were so you're right good so having said that we would like to continue a discussion of exclusion uh clause exclusion clause or exemption clause or limitation clause so if you look at the literature you come across these themes exclusion clause or exempting clause or limitation clause so we will try and explain uh what each of them mean that's why the fact that uh oftentimes some writers may create the impression that they are interchangeable that is one can signify the other so what happens is that when it comes to contracting or structuring you know relationship with others concerning the transaction uh it may well happen that a clause by a provision is put in the contract by which one party is saying that i am going to [Music] refuse to accept liability for certain things i will do or i cannot be held live but i cannot be held responsible for certain failures or for certain wrongs which i'll commit now where the clause or the provision is seeking to say that under no circumstance with the person will be heard liable for any breach of contract for example we can say that it is an exclusion clause exclusion clause also known as exemption club because something you are saying when you are smoothing yourself on the other hand where a party is not saying that i cannot be held liable at all and it's rather saying that well i can be heard liable only up to a certain point and beyond that point i'm not prepared to bear any liability then call that limitation clause so as the name suggests you are limiting your liability you are not saying that i cannot be heard liable at all you're only trying to say that well i can be held liable only up to this point i cannot be held liable beyond that or if it's about payment of money you are saying that well i can be held liable for this breach i cannot be held liable for that bridge or this quantum of uh money and so on so that is a limitation you are not it's a particular solution you are not really exempting yourself now we usually see this in a standard form contract if you remember last semester we talked about the standard form contract or also known as a contract of adhesion so a standard form contract also known as the contract of a adhesion simply means that you have a contract which has got a set of tents which are used for all manner of people that is to say that anybody who is willing to contract with you uh you are going to use the same set of attempts and this usually happen in a number of situations for example when it comes to uh we are all using the the phones now the terracoms we have various contracts to them or do we don't even bother to read them but if you are to uh pay attention to the wedding you notice that it's the same thing that they use for all of us not only them you go to electricity you need a lie to your house if you look at the terms and conditions it's the same thing that they give to all of us so that's why we call like their standard terms or something even go to a bank to open an account uh the terms and conditions relating to the particular uh account if you compare to that which they give to other people you know these are the same thing and that's what i call like the standard form contract also known as a contract of what adhesion now it is in that type of contract that we often encounter uh this devices you call the limitation clause or exemption clause or squishing clause now that is problematic that is uh whether having limitation clause or exemption clause is problematic why is it problematic in the usual uh course of things you and i have a contract if i'm in brits you like to have your full pound of flesh you like to hold me liable [Music] so why is it that when you are in bridge you do not want me to hold the live book or if you want me to hold the live world or you are saying that well when i am in bridge uh i cannot be held liable beyond this amount i mean that suggests unfairness and if you remember in a standard form contract or in those type of contract where you will see one party trying to [Music] insert or trying to put a limitation or exclusion or something close now that party invariably happens to be the stronger party a stronger party in the sense that he or she has got more bargaining power has got more economic muscle than the other parties without a party is like the relatively weaker party and he or she virtually has no say either he agrees or he goes without it and that is why we call the standard form contract take it to a limit contract you take it or you leave it you cannot really do much just imagine if you want to get a maybe uh you have a momo or you're going to register an account or anything like that the terms and conditions you cannot even change your word let alone even the sentence if only you want to enjoy that you have to accept whatever they are saying in full so therefore where a stronger party in that contract has uh put in the contract that he or she cannot be heard like book or sentence or if it's in breach at all he can pay only after a certain amount of compensation and no more that obviously is no fair and that is why the common law sets a very stringent test a very rigorous requirement which must be met before the exemption or description or the limitation clause will be considered as valid and that test is that the term must be incorporated in the contract that is to say that there must be a convincing evidence that that term was really made part and parcel of the contract it's an integral part of the contract it's not just peripheral and and and that is important that if you say that the weaker party to the contract must be demonstrated to have been very much aware that this is what was in the contract that he or she was becoming a party to or signing up to and because he or she was aware then we can take solace in the fact of uh freedom of contracts because in that case he or she was very much aware that the contract that he or she was going to be part of contained this particular clause which seeks to exempt or exclude or limit liability for one of the parties in the contract so so long as he was very much aware of that we can really see that he took a calculated risk of burden so that is why the test the first test is that it must be incorporated into the contract you come and see more about this and how it actually plays out in practice the second test is that once the court has established that the term was really incorporated into the contract the court would also examine the wedding of the contract to find out whether it actually covers what actually happened in other words the bridge you know look at it the exemption cross or mutation increasing force will like i saw like a defense a bridge has occurred you are trying to say that yes there's a bridge but i made it clear that i'm exempted from this kind of bridge or if i'm not exempted at all i have only a a restricted liability i can only be heard liable up to a certain point and not beyond as well is the defense so when the breach has occurred the court must examine the wedding of the of the clause to find out whether it actually covers that which happen so these are the devices or the mechanisms which are used to check the use of exemption clause or limitation clause at common law so for example if you are invited in examination to discuss the the mechanisms which are used to control the use of exemption clause the discussion is going to revolve around these tests but we are not going to take them one after the other and actually discuss them and see how it plays out so let's take the the first one uh which is that uh the the clause must have incorporated into the contract so that is the first uh test we mentioned the incorporation and the rule is that uh exemption clause or smooth execution clause will only be binding if it is of the contrast that is to say that if it is incorporated into the contract in other words where there is no evidence that the exemption clause was really uh made part of the contract then it will not be upheld so therefore if the exemption clause is contained in the equipment the court must be convinced that it was part integral part of the contract and a very good case to illustrate the point that the the document containing the exemption clause must have been integral part of the contract is the old case of a chapel thing against barry udc very interesting case interesting in the sense that there was yeah olivia leave your hands up i can talk olivia olivia the sinner and then you can meet yourself olivia you cannot hear me uh can other people confirm if you can hear me please you can put something in the chat if you are hearing me can somebody type in the chat if you hear me because olivia is saying that she cannot hear me okay olivia if you cannot hear me check your uh what do you call it the is it the sound system on your machine so that sometimes it's probably off so you can know here so check it once you check it i'm sure the sound will come thank you events you commit to yourself look please a quick one and to address olivia's problem she's using an android phone she should check on her file left and down the far left that's a setting which suggests that darling and whatever she said yes wifi or said with that she will hear you all right and then yeah yeah it usually happens with android phone so um on here file left down there um there's there's a button on the far left i think that's the first one you should select wi-fi or cellular the sound will come and i have a question so with the test of validity if you can go to that like the test of validity of exclusion and limitation plus yes what if um indeed it has been incorporated into the contract but there is a let's say a statute or a law which suggests that um can can the statute or law override the the the term incorporated into the contract okay good thank you uh evans that is a very good question that if you have an exclusion clause for example or any term uh which i've especially put in the contract can a provision of legislation override it the answer is yes especially so where the provision of the relevant legislation is mandatory and not optional what do i mean by that there are times that in legislation it will make a provision that where the parties will be contracts have not expressed a conjuring intention then this is what shall be the position so where that is the case the lawmaker asked me what you call like a default uh provision that is to say that if the parties to the contract choose not to make their own arrangements then what the law is saying is what will happen on the other hand where the parties have especially made arraignment then what the law has said will not apply because the lawmaker has already given power to the parties to make their own express terms as it were so events it very much depends upon the wedding of the relevant legislation if the relevant legislation for example uh contains what we call like a default clause before close in the sense that it applies whether the parties do not make provision then that would be it on the other hand if the wording of the legislation is not just about the default clause but it is the mandatory provision then in that case the parties with the contract cannot make a controlled arrangement they cannot uh contract out statutory uh position so let us keep that in mind but let me also add that the 1992 constitution also brings another layer for example if we take the provisions in chapter 5 of the constitution which are about human rights under no circumstance can you make a contract saying that you are contracting out your constitutional right or your fundamental human rights uh as an example so thank you evans for that question so let's continue with the discussion that we're doing we are trying to look at uh the requirements or the test of validity of exclusion or limitation clause and the first point we have made is that there must be evidence of incorporation that is to say that it must be shown that the clause was actually made integral part of the contract and i mentioned the case of chapel 10 against barry udc in that case what happened was that along the beach uh chess had been parked there and the the checks were actually uh being rented or being hired if you were you wanted to have it so you go and then you pay you are giving a ticket so the ticket which was given uh there were some writings at the back of it that the owner of the chest which were being hired uh was not prepared to accept liability for any injury which may occur as a result of the use of the chair now this person that is a chaplain got the chair and used the chair sat on it a collapse and he sustained severe wounds so he decided to sue the council which owned the chevrolet ubc and when the mata went to court the question was whether the contract between chapelten and then the the udc which owned the chair whether that contract included the term which are written at the back of the ticket because the writing at the back of the ticket was that those who own the chest could not be held liable for any injury which may be location as a result of the use of that chair now to resolve that the court needed to find out whether the west at the back of the ticket could be considered as part of the contract so it was in that contest that the court of appeal applying the objective test said that would any reasonable person for example uh recognize was on a ticket a ticket which is given to you after the contract is made as forming parts of the contract because in the course view that you are giving that the tickets after you've had a chair you paid for it already and you you become aware of the words at the back of the ticket after the contract has been made and because you become aware after the concert has been made in the court view that could not be considered as forming part of the terms of the contract as it were because it was after the fact he became aware of it after the contract so it did not satisfy the requirement that it should form an integral part of the contract so that is the case of a chapel thing against barry udc so the take away is that the i mean the the west at the back mass are formed part of the integral part of of the contract now still on the point of incorporation the point that the exclusion clause for the mutation clause must be made part of the contract it is usually considered in three ways in other words you can use one of three means to show that the worst the excruciating clause form part of the contract the new form part of the contract so we are going to look at where the contract requires signature of the parties what the loss is where the contract that's all required signature of the parties what the loss is and then where there has been a cause of dealing between the parties what the law says in terms of whether a particular clause uh which is being asserted has been a squishing clause forms part of the contract or there's no form part uh yes sir yes my question is on this case the chapel thing barry something yes you are saying so if you have usual course of dealing with somebody which i should say uh i have a contract with someone who used to supply me water every day when the person's come and then i'm not there you can just deliver it to anybody over there so that when i come i can take it and then a certain day the income the person may bring a formal contract which in its the person can even bring a clause that if i come and then you are not there i will not deliver you to anybody which i may sign it without reading it and see that flaws have been included in it so at the end if i take it like my usual course of dealing if i'm not there you can come and deliver water to me in the day that i will come in need to know what that how can that should be resolved because i will have a visual cost of cleaning when i come i saw that no water was delivered because a contract new contract has informed that if i come and you're not there i'm not going to give underwater okay thank you uh kofi puku you mentioned supporting again by ubc and then you quickly talk about cost of dealing uh trafficking against by ubc does not really illustrate how we recognize a squishing clause in the case of a cause of dealing but the point you raise regarding the course of dealing is a very interesting point and as you notice that uh i have just mentioned three ways by which the court exploits the issue as whether exclusion or limitation clause has actually been incorporated into the contract and these are by signature by notice of by course of dealing so we will come and discuss by course of dealing very soon so let us go according to like the other presenter they look at it by signature and then by by notice and then we come and discuss uh by course of delay and then your question will be addressed within the context of that discussion thank you coffee okay so uh where the contract requires signature of the parties then the court will make a determination as to whether exemption clause has incorporated when the court is able to establish that a party against whom the exempting cross is going to operate had appended his or her signature in other words if you sign a document containing exemption clause the presumption is that you have accepted the exemption clause to be part of the contract and for that matter it satisfies the requirement of incorporation don't forget that at the outset we indicated that due to the inherent injustice unfairness as a suicide exemption or limitation clause the common law sets a very stringent or very strict test that before we recognize exemption clause there must be evidence that it was duly incorporated newly made part of the contract so how do you resolve that where you have appended your signature to the contract then it's puts any doubt away and really confirms that you have accepted that the exemption clause or the squishing clause or the limitation clause should be part of the contract of course as i said that is the general rule and and this general rule uh operates on the assumption that you sign the contract not as a result of any fraud not as a result of any misrepresentation so therefore where you have signed the contract freely not because you have been deceived into signing or you have had any misrepresentation inducing you to sign then you are deemed or you are presumed to have accepted the exemption clause and again if you sign without even reading you are bound by it so it is no defense for you to say that oh i didn't read before signing once you have signed you are deemed to have accepted it and that is why in the old case of uh less strange against graco very interesting case let's train against graco where someone went to buy a cigarette vending machine and there were no wastes would have been written in a very small character though it was legible and part of those were stated that the seller of the cigarette valley machine was not prepared to accept any liability for any uh breakdown of the machine and so on so the buyer uh signed the document having bought the machine and took it and have it uh installed uh in his uh uh business uh era he also has something like a pub if you like and in no time the machine broke down so uh she sued the company which actually sold it and those who so did police uh reliance on the junction clause which she had signed and during the trial she made argument that well she didn't read it although the evidence was that if she had wanted to read it the the writing could have been read it was legible and the course said that in so far as she had signed the document containing the exemption clause she was bound by the thames and that is why lord justice written in that case who said and i quote the plaintiff having put her signature to the documents and not having been in in include include i am induced to do so by any fraud or misrepresentation cannot be heard to say that she is not bound by the terms of the document because she has not read them unquote in other words where you have signed the document containing the exemption clause it does not matter that you do not read it you are burned by what the document is saying the similar point if you remember the case of the wilson and ruby the quote made a similar point that yeah remember that case it was about where someone signed an invoice and he said that he thought he was signing it as a guarantor for someone when the the invoice does not actually suggest that and the course said that your negligence is not reading uh the document before signing cannot excuse you from the effect of vote of of the signature so we as a law students and for that matter as a literate we shouldn't sign documents without actually reading them because once your signature is found on that document the assumption is that you have accepted to be bound by what the document is what is saying of course as we indicated that principle operates on assumption that you sign the documents freely and there was no fraud and for that matter where there are problems leading to the signing of the document you could be excluded from the effect of it so we are going to look at the subject but i noticed that someone hand is up so let's take the person oh okay the president has put down this hand so the exception that is uh when will you be excused despite the fact that you signed the document when will the document that you signed will not be binding on you that is where you sign the document as a result of fraud or misrepresentation if you sign the document as a result of fraud or misrepresentation then despite the fact that your signature is on the document will be exclusive and you'll not be bound by what the document is saying uh what do you mean by that where you went somewhere and a person you were dealing with for example deceive you to into signing a document when the document meant something different from the true intention of the party would save you into signing then you will be exclusive from the effect of the document so if you look at the case of curtis against chemical economy company limited a woman had a wedding a gown and the wedding gown had embossed on it setting the creations a sequence and beasts and all that so when she took it to the laundry the laundry attendant gave her a document to sign upon collecting the gun from here and the woman inquired excuse me what is this for and then the woman explained to her that the document that she was signing actually meant that the company was not prepared to accept recent responsibility which may occur uh as far as the uh distraction to the the declarations were concerned like the bs and the sequence in other words the woman signed the document thinking that she was signing a limitation clause in which case the company was trying to say that okay if there is a discretion to the business if we are not prepared to assert responsibility for that however the truth of the matter was that the company was saying that it was not prepared to accept any responsibility how sore ever arising that is to say that the company was not only limiting its responsibility uh or or was not only trying to exclude responsibility for disruption to the recent sequence but it was excluding responsibility for any other form of distraction as well so when the woman eventually went for the uh the gun and it was badly mutilated and she sued the laundry company the company saw to rely on the document that she assigned to say that the company had excluded liability for all damage the court said that the fact that the woman has signed the document will not necessarily mean that she's bound by it because she had been deceived into signing it the deception was that the document that she signed did not tell the whole story regarding what the true intention of the company was and because of the fraud you know that in law we say that uh fraud visit everything where there is fraud everything will be considered as being void and for that matter the woman uh despite the fact that she had signed the document was not held bound by the document because she has signed it as a result of fraud as a result of uh a deception another way of putting the same uh exception would be to play what they call the non s factor a non s factor simply means that the person is saying that despite the fact that i have signed uh this document this document that i have signed is not my deed it's not my need what does the person mean by saying there's no money that's to say that the document that i signed is of a fundamentally different character from what i intended uh to be signed for that matter i should not be held bound by it i mean it's the same way of trying to also explain uh the fraud because none expected simply means it's not mine indeed the sender yes i signed this document but this document that i signed is radically different from what i intended what uh to sign and for that matter despite the fact that the signature is mine that is all what i intended to sign and i should not be held uh bound uh by it so if you look at the case of a sundesk against the angular building society also known as the case of the galilee it illustrates that point but again in that case as you look at it the woman did not read the document and because her glasses were broken now that's yeah who signed this up yes you can omit yourself you can mute yourself yeah you can mute yourself the person will raise uh his wife please yes i'm done please concern um curtis and chemical cleaning company something something yes did they claim or was the claim successful please was the claim successful because um was the claim successful because um the staff of that company told the lady um that she was only signing for what we call it uh my destruction of the visa and sequence or whatever was it because or was it because it was was it clearly stated that let me come again with a question i would want to know if it was written clearly or especially that um we are not liable for any damage to their gown but then the lady was told that uh it's only it only regards to be same sequence i don't know if my question is clear yeah so uh what is happening is that uh what the woman was told and what could actually be read and you know this since it happens you can go to a place they'll give you a document to sign but what you are signing portion of it may be hidden somewhere so so so so that was the point but if you examine the document uh closely eventually during the trial that which was proved was that the company was saying that it was excluding a liability however arising but the woman i have been told that what the company was excluding liability was in relation to just the declarations so that was the the the deception that was a disability what she had been told was if you like inconsistent with the true scope of that which she was made to sign so that was honest yes thank you doc okay yeah so i made the point that another way by which a party may be excluded from a document that he or she has signed is where you make a successful play of known s factor and as i said it simply means that you are trying to say that despite the fact that you've signed the document the document that you have signed is radically different from that which you intended to sign and for that matter you should not be held to what the document is saying well aware that can actually avail you you must have uh be diligent you must have done all the due diligence what do you mean by that if you are supposed to read the document you ought to have read it if you do not read it or if for example you are someone using spectacles to read your spectacle was not available and for that matter you couldn't read and you didn't bother to let somebody to read it for you and just went ahead and signed the document you will not be allowed to argue that none s factor that despite the fact that i have signed this document it is not intended to be what i wanted to sign so i shouldn't be held liable to it as happened in the case of the soundest against angular building society or the case of the enchroma against ewa and then a wilson and ruby and then a crowd against as a squirrel organian case is suggesting that the mere fact that you didn't read the document properly or didn't read it at all will not entitle you to invoke the defense of no necess in other words you'll not be allowed to say that uh you shouldn't be held uh bound by the document that you have sent simply because we didn't read it well or you didn't understand it or you didn't read it at all and that is why as i said if you are not sure don't read it don't sign it like once you sign we sign as a means of authentication in other words we sign a document or return print the document as a way of giving our approval to it and for that matter where your signature or your template is found in the document the reasonable assumption to make is that you had given your approval to what the document is saying yes uh please i prefer that you rename yourself and put your names inside of their phone names so that i can call you if i want to call you okay yeah and then somebody was galaxy tap something put up so he had i don't know the person still wants to come again but if you can rename yourself and use your real name like even sue and steven that'll be very good right thank you so we are moving to another test by which the call to determine whether an exemption clause satisfy the requirement of incorporation in other words apart from signature can we also show that an exemption clause was do link of incorporated yes derek cosby derek who's going to hear me yes okay look uh in a situation where someone's nature has been fraudulently signed by another person and then uh the person whose signature has been probably signed indicates that he's not the right person who signed the document in this case let's say a party a has signed a document my signature and it's correct derek before you continue uh regular students can anybody confirm if you are here because this class is meant to be for both of you to communicate in the chat if some of you are here all right uh cause we continue okay look so in a situation where someone signs my signature and then the signature looks exactly as mine okay how can i defend myself in the low court and then what would be the two for the decision by the court either they are going to use the objective tests to decide to determine indeed because we are not the one who signed the document all right uh derek uh thank you yeah so what your question actually uh what does or no relates to uh it's a criminality in the sense that this is about someone impersonating you someone uh forging uh your documents or your signature so that this this is a crime pure and simple and it it it it happens uh all the time where someone has imitated another person's signature and the the the original or the authentic uh uh holder or user of their signature does not know anything about the document at all so do this be a matter of evidence right it would be a matter of evidence the court taking the evidence to go into it to find out whether as a matter of fact uh you knew about this or didn't know about that but what to be talking about we we we we don't have problem as to someone having mitigated your signature no what they are talking about is where as a matter of fact it is your own signature so what you your example is one of the a crime right because the the rare owner of the signature does not know anything about it and another person has actually copied or imitated it and trying to pass it as the work of the rail of the signatures so that one is different but what we'll be discussing in the case of where like the classroom and grand cup you sign it to yourself or the creators against chemical cleaning you sign it you are safe however you sign it as a result of the certain uh deception so that one is different but what you are talking about where you've not signed a signature at all someone has fought it or someone had mutated it that one you can easily be excluded from the effect of it where the evidence suggests that they're completely innocent and you don't know anything about it good so we want to look at the second uh instance where we establish that exemption clause has been corporated into the contract so we are talking about incorporation by notice so here the the document doesn't require signature of a person for you to be bound so where the contract does not require anyone to sign anything how can we be sure whether a certain exemption clause as a matter of fact was really incorporated in the contract it funds part of the contract so where you are dealing with unsigned contract or control it doesn't require signature the position of the law is that reasonable and sufficient notice must have been given regarding the existence of the cross in other words where the transaction is said that there's no need for anybody to sign anything before we can actually conclude that a certain exemption clause funds part of the transaction there must be evidence that the other party was given reasonable and sufficient notice regarding existence of that particular exemption clause and this happens let's say in car park right you go to a car park you know you park your car there and for example i packed my car at the accra airport right i returned there yesterday because i'll go back on wednesday so it's the car is going to be there let's say for a certain number of days i've taken like the ticket let's assume that uh there are certain things which they want to be part of the contract and see that okay if you've left your valuable in the in in the car management of the airport's car park is not prepared to accept any responsibility or liability for any loss which may occur to valuables left in the car assuming that is meant to form part of the contract now according to this aspect of the discussion that you are doing reasonable and sufficient notice ought to have been brought to me so that in packing the car there i will know that the management of the car park is saying that if there is any valuable in the car and anything happens with the management is not prepared to accept responsibility where there is such sufficient and reasonable notice then should it happen that i go and valuable are left in the car is missing and i sue the the management of the of the of the car park they will be able to place reliance on the notice we said that they were excluding liability for any loss which will be occasion to valuable in the car and a similar point happened in the case of a parker against south eastern railway a woman or someone deposited a back a no gentleman opposite the back in the if you like like a storage room of a rail station and having deposited it was given a ticket and on the front side of the ticket it was written see back so if you look at the back it was stated that the railway that is the the company which owned the the storage facility was excluding liability for items worth 10 pounds or more in other words if you had any item in the bag which were living in the store and the value was more than 10 pounds then they were not prepared to accept liability should anything go wrong and mr parker who had gone to deposit his bag over there uh did not read the the clause thinking that the ticket was just uh a receipt for the payment that he had made now later on when he went for his bag no some things were missing and the mata came to court drained the trial mr parker admitted that he knew that the ticket contained some writing right but he did not uh read it so the trial was a trial also involving like a jury so the question which the court had to address was whether the the west right what are the wealth at the back of the ticket which which which were today felt that the competitor was not prepared to uh accept liability for any item uh weight 10 pounds or more whether the form part of the contract which was made between mr parker and the company and the result that it was necessary for the court to determine whether reasonable and sufficient notice of that have been given to mr parker before or at the time that the contract was made and it was in that context that the the court of appeal uh speaking through lord that smells i made the point and i quote i am of the opinion therefore that the proper direction to lead to the jury in this case is that if the person receiving the ticket did not see or know that there was any writing on the ticket he is not bound by the conditions that if he knew there was writing and knew or believed that the writing contained conditions then he's bound by the condition that if he knew there was writing on the ticket but did not know or believe that the writing contained conditions nevertheless it will be bound if the delivering 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 notice that the writing contained conditions unquote so lord justice knowledge was making the point that the most important thing to note in the case of this nature is that having regard to the manner or the circumstances in which the ticket was given to the man could it be said that reasonably he could have had sufficient notice regarding existence of that exemption clause in other words in the usual course of things if someone goes to deposit his bag in a place and is given a ticket and let's say that it is written in front of the ticket that see back should we assume that the person would definitely be aware that the contract that is making with the management of let's say the store or with that facility include the west at the back of the the ticket well it is a matter which will be resolved on case-by-case basis but the principle which will guide the court is that using the reasonable man's position using the objective tests so using objective tests well a reasonable person having gone to deposit his bag and having been given a ticket where it is written in front of a c back and then the back and uh where's the trying to suggest as pushing close would the reasonable person have been prompted for example to read it so as to be aware that the contract that he or she was making with the company for example included those wires at the back of the tickets so that is the class of the matter so if you read what they call the ticket cases that is how the course actually goes about it yes ma'am hello doc please can you hear me yes please could parker not split that um as at that time he was given the receipt they had finished contracting good and that is why the point uh being made is that was the notice reasonable so therefore that's like the uh the case of the what is the physique chapelton and barry ubc the the the awareness of the writing when was it created was it before or after the contract if it was before the contact by the time of the contract then it can be considered that a form part of the contract on the other hand if the point is that the ticket was after the contract and for that matter they take it was supposed to be like a sort of like a receipt then in the usual course of tense a receipt will come after the contract and for that matter if anything is written on it it is not meant to form part of the terms of the contract on the other hand if you read other subsequent uh cases uh the suggestion we made especially if you read the case of the taunting again that su lane packing uh suggestion we made that if before the ticket or the receipt was issued for example there are some indications as suggesting that when you get the ticket look at it and things are there then the assumption may be that you are giving a notice that the contract that you are making also include the words at the back of the ticket but that would be a very extraordinary circumstances otherwise by and large the proper thinking is that uh you must be aware of the exemption clause before or at the time and not after and tickets and receipts are actually historical day after the transaction yeah so that is uh the position so look at the case of a thompson and then the case of the taunton as well they're very interesting uh cases so like the the thompson against london uh i noticed events hands is up okay let me release events events look well please um i'm a bit confused here what what factors determine reasonable notice i'm asking that in respect to i know you haven't mentioned this case by a native version to uh make it very simple you go to hotel for example okay maybe the the the railway one and then the the car terminal one the the nature of the circumstances for example just like the the the the car park the pot i mentioned may not be a very good illustration of the principle but the hotel is a very straightforward illustration you go to hotel question is at what point is there is a contract made the contract is made uh where you sign up for the room and not uh when you've actually gone to the room to put your attentions there so if you look at the uh the case of the olay against a marble we had a couple which went to a hotel they uh signed up for a room and everything there they were taken to their room and when they went to their room they left some of their things there and later on they went out and came back some of their things had actually been stolen and when they sued their company the company said that well in their room they had written that the management of the hotel will not accept liability for any loss or damage to vulnerable so the crucial question was whether the west which they found in the room were meant to form part of the contract which they entered into the hotel and that in itself depended upon at what time was the contract made was the contract made at the reception when they signed up for the room or the contract was made when they entered their room and of course said that well uh in the ordinary course when the contract is made when you sign up for the room and if the hotel management wanted anything to form part of that contract the they should have been made aware at that time or just before and not after so the the test is that whatever exemption clause which is going to form part of the country it does not require signatures of the parties as it brought your attention before or at the time the contract is being made and not after so that is the most important is all the time if you are given any set of facts and you need to determine whether a particular term which does not require signature phones part of the contract or not was there reasonable notice and then the reasonableness of the notice here as i said will depend upon like the objective tests objective test in the sense that with the reasonable person have actually uh understood that uh those were where to form part of the contract which he or she was entering into would that would would would the other party as it were so the test is objective and that is very uh important and for that matter it does not really matter whether the other part of it affected by the exemption clause is blind or illiterate or unable to understand and that was why in the case of a jia against kuja a notice would have been written in english language right and which was stuck on the windscreen of a car stated that passengers traveled at their own risk their come on my line went down sorry yeah so in uh in that case where the let me share the screen again yeah so where the the west have been written in english and then the affected person was a [Music] a german what the court said was that reasonable care had not been taken to bring it to the person's attention so uh in the normal stream of things if a notice is stuck on the windscreen of a car which is that passengers travel at their own risk and the personnel involved was someone who does not speak english the court said that in that case no reasonable care have been taken to bring it to the attention of that particular person but of course what i would like to emphasize here is that all these examples we are given they are not cast in stone that is to say that examples vary and what is crucial what is really important is that we know the principle and the principle is that reasonable and sufficient notice you have been brought and what is reasonable or the sufficient who vary from case to case so that is what is important so it depends on in in any case you have to make use of what you call like the objective test an objective test you know how it works a reasonable person uh in the circumstances of the past will he or she have understood that this particular uh contract included this uh information as well if the answer is yes then the requirement have been satisfied the answer is no then the comment has not been so that is what we should keep in mind so that in every set of facts we will be able to uh make the determination the case law you've given are just uh examples when maybe in some set of facts the quota concluded that yes uh this one no reasonable notice i've been given or that one reasonable notice everyone has given us it yes clement requirement you can meet yourself uh comment attend sunday sub you commute yourself okay so it's not really intending to talk working here yes clement hello doug yes can you hear me yes thank you very much um i want to find out if a reasonable notice is given but the ways in the cross is so ambiguous to the sense that the other party had a different meaning today to what the words were saying in that case thank you very much okay hello yeah so go and i understand your question yeah so where there's a ambiguity regarding uh the west very soon i'm going to talk about how to call interpretation right interpretation of exemption clause i know as we noted at the beginning the court controls exemption clause in two ways the first one is about whether it has properly been corporated in the country that is whether he funds part of the contract what you are doing so far is that we are trying to look at how the call to conclude that exemption clause funds part of the contract so we look at situation where the contrary requires signature and that one you've noticed that the position of the law is that in the pharas you have appended your signature you are bound by what the exemption cross is saying of course we have exception that is where there's fraud and misrepresentation or you're talking about known as factum then you'll not be bound by the exemption clause simply because you've signed it so that one you talk about that and now we are talking about those situations where you do not have to sign the contract so in a situation like that how can we say that you are bound by the exemption clause in that one we have noted that the position of the law is that you should have had reasonable and sufficient notice of the exemption clause before you be held bound by it and that's why we're looking at all these instances so when we are done with the incorporation we are going to talk about the second requirement that the exemption clause will have to be interpreted to cover the particular bridge which has okay so it will be there and then they have to talk about what they call the ambiguity approach where you talk about what they call the contract preferential right where we have uh ambiguity then the court is going to adopt the interpretation which is with the disadvantage of the person at whose instance exemption clause is adopted because we have noted that exempting clause by itself suggests some uh unfairness and for that matter the courts are not happy about it but we come in and talk more about that pretty soon so another point to note where the exemption clause does not required signature is that you must draw attention to any unusual clause if you say unusual clause things which are not really common if you want it to be part of the contract then you must draw a person's attention to it for example if i drive my car to park in a car park and you want to say that you as the owner of that car park you do not want to accept any liability for any loss or damage if that is what you want to happen you must adequately bring that to my attention so that i know that if i come and pack there i'm packing at my own risk but if you don't do that and if something should go wrong you will not be here to say that well you're not banned by it so the point is that any unusual clause might be brought to the attention of the other party against whom it is going to work so let us keep that in mind and uh the case of inter photo picture library again the salute to visual programs is a very illustrative of the point that where there are honors conditions right in other words where you want to include things which are quite severe than what usually happens the more is required of you to bring that to the attention of the other party and that is why if we look at the case of the photo feature library again the style to research programs uh the clause in that particular case was held not to be an exemption clause but a clause and why was it so because excuse me does it excuse me i had the background noise yeah so uh the takeaway from inter photo picture is that if you have terms which are more unusual then you are required to do more in terms of the notice which you should bring to the other part before it will be binding so the more unusual the terms the more unknowns the particular terms the greater the responsibility that you have in terms of bringing it to the attention of the other party i mean as simple as that if the the particular term is not that unusual it's not that extreme it's not that severe the level of notice required is not that great but if it is more unusual if it is more severe then more is required and i think that that is consistent with common sense so for example if someone is going to hire a chair just like what happened in the chapel there in bahrain ubc for example someone is going to sit on the chair you say that if you sit on the chair and there's any injury from using the chair i'm not going to sell responsibility that is quite unusual because if someone if you if you are renting a chair and someone renting the presidency or anything collapsing the person is injured you must be bear responsibility it means that the chair was effective so if you want that to be the case then the law is that you must take adequate steps to bring that to the attention of the other party another point to note is that the notice might be contemporaneous with the contract we've explained this in in other words uh before that is to say that where the exemption clause doesn't require signature of the parties then it must have been brought to the attention of the other part either before or at the time of the contract and not after as we saw in the case of only a marble the hotel example while the exemption clause was rather in the room and the contract had made at the reception when okay now we want to talk about incorporation by uh cost of uh dealing so that is like that the third means of trying to satisfy the requirement of incorporation so incorporation by a cause of dealings how does that work out well where there has been you know somebody has a question about the course of dinner where there has been an established cause of dealing between the parties for a long period of time and that cause of dealing for example sorry i don't know why the internet is becoming unstable you'll be fully filmed soon sorry i don't know what is happening to the internet yeah so another means by which we show that exemption clause have been incorporated by finding out whether there's been a cause of dealing and what do you mean by a cause of dealing and that is to say that where there has been a previous cause of dealing between the parties the parties are there to join another presenting a particular subject matter a particular transaction uh you know many times in the past then if there's a samsung clause which for example had been cooperated in the previous transactions and if is the same transaction which is being repeated then because of that established cost of dealing it can be taken for granted that that exemption clause is incorporated in the contract which is being made now so if we take the case of a spelling against a brass show for example there had been many years of dealing between the defendant and the plaintiff and they were warehouse men so the defendant delivered to the plenty for storage eight barrels of orange juice and a few days later he received from them a document acknowledging the receipt of the various and referring on his face to clusters printed on the back one of the clauses printed at the back exempted the plaintiff from court any loss or damage occasion by the negligence wrongful act or default of themselves or their servants when ultimately the defendant came to collect the barriers they were found to be empty and the defendant refused to pay the storage charges and the plaintiffs sued them so when they were sealed the defendant made the counter claim you remember from your ghana liga system akanda claim is where uh you are still with me and then i also see you back so the defender made a counter claim and for negligence and the plaintiffs are in the answers to the counter claim pleaded the exempting clause now don't forget that there was exemption clause that do not accept liability from any loss or damage occasion by negligence wrongful act or default in any way so before the court could determine whether such exemption clause was uh adequate was adequately incorporated in the contract or not the court took evidence and went to the fact that there had been uh a consistent uh course of dealing between the parties and on basis of that uh the court could actually uh come to conclusion that the defendant was bound by the exemption clause which the plaintiff was uh pleading in defense and but what is important is that in the sparling and brass show the court took pains to find out whether there has been established cause of dealing and that established cause of dealing has been consistent not just one of even like dealing no and then one not dealing may not be enough for the court to say that exemption clause can be incorporated by a course of dealing there must have been consistent course of dealing but of course sometimes it's not very easy to uh determine that as the case of a martune against a david mcmahon limited who suggests uh to you but where you are trying to rely on course of dealing as a means of showing that exemption clause has done incorporated if it is against a consumer uh more than one transactions will be required a number of transactions required before the court to say that uh exemption clause has only been incorporated by a cause of dealing and if you look at the case of julia against a ramblers limited it is illustrative of the fact that where you are trying to rely on the cost of dealing for establishing existence of the exemption clause against a consumer you must have had many previous transactions before the call to accept that so we have now explore how the call to determine whether exemption clause has been incorporated whether it falls part of the contract either by signature by notice or by cause of dealing so when we meet again we will discuss interpretation of the exemption clause in our next class we discuss interpretation of exemption clause and also construction of the terms of contract in general and how to mark end of discussion of terms of contract so we will end it here and then we continue the last aspect in our next class unless there are some questions otherwise we end it here yes clement marmifos you are clement um doc please can you hear me yes um please i wanted to ask that um could i'm not is being blind could notice be implied yes for instance let's say you get to a hotel room and you are giving um the permission to let's say put a password on a safe where you can put your valuable belongings and um you do not do so but then try to sue the hotel for let's say msn manual something of that sort could the hotel say that um we gave you a password to let's say a safe and then because of that you could have kept your valuables there that's what i mean by all right right right okay yeah so where yeah i i i i get your point yeah so within uh circumstances of that where you are told that uh and usually of course also come back to where were you made aware whether you had to leave your valuables and uh particular uh no safe lock which have been provided under in the room if at the time that you were taking the room at the reception when you signed up for it your attention has been drawn to the fact that when you go to the room you may provision for a safe so you have any vulnerable please keep them in and they have your password if that was made known at the time of signing up for the room then uh that is part of the contract if it was not made known at the time of sign up for the room then according to the case of ole marburg it doesn't form part of the terms of the contract and then that is uh what the position would be for so what do you think yes it's gone okay mommy for sure yes i think that's how it should be unless you have some other ideas yes sorry the internet [Music] yes [Music] thank you very much um and when you started so i'd like to appeal if i'm the recording yeah so i'll i'll and send it to you yes all right thank you very much so we will continue