A. Introduction Joe (“J”) is attempting to sue Dazzle Dry Cleaners (“D”) for compensation for the loss occurred due carelessness of D. D will defend itself likely by proving exclusion clause as a part of the terms of its contract with J. In order to advice J it necessary to determine whether the clause has a contractual effect. Secondly it is necessary to determine the terms of the contract and analyse if creation of such clause protects the party relying on it from the consequence of breach. Finally if it’s rendered ineffective by any statue which make D liable for damage, should be discussed. Contractual Effects of the Contract In this case main question that arises is whether the exclusion clause is part of terms of contract. …show more content…
Even if D proves exclusion clause part of the contract does not save it from claiming of damages. In order to defend itself D has to prove the damage caused by negligence of the staff members in handling the shirt and losing to a customer who claims to have lost his ticket is a part of exclusion clause. Therefore there is a need of proper interpretation of exclusion clause by examining its language . The clause here mentions the words “any loss or damage” and “regardless of how that loss caused” may protects D from any claims, but the meaning of the words used is too vast and does not specify nature of the damage and loss thus clause is construed Contra proferentem . Whereas, following White v John Warwick , ambiguous wording out of exclusion clause would effectively protect D from their strict contractual liability towards J, but it would not exempt them from liability in negligence. Liability of negligence can only be excluded if clearly expressed . Thus the facts show there was negligence by the staff of D leading to loss cause to J. There is a stress on exclusion clause as a part of contract which might be a deciding factor in this case. Also it is a business contract so it is assumed to create a legal relation between parties (J and D). Protection against the Breach In order to determine the terms of the contract it is
The Civil Liabilities Act 2002 defines negligence as a failure on the part of the defendant which results in the harm of the plaintiff which could have been prevented by taking reasonable care. The breach of duty must be foreseeable, Sullivan v Moody. The risk must be not insignificant, and a reasonable person under similar circumstances would have taken precaution against the harm. In this case
The area of law to be discussed would be implied 'terms of a contract which are not agreed by the parties.' They are terms which are related to 'contingencies which might affect the contract of employment in this case.' This is what 'parties intended but left unwritten in the gap of a contract.' There are five conditions by which a contract would be satisfied before a term would be implied. They are 'reasonable and equitable, necessary to give business efficacy so no term will be implied if
2. Maclntyre, Ewan. "The Law of Torts 1." Introduction to Business Law. 2nd ed. Essex: Pearson Education, 2012. 258-304. Print.
This case illustrates the presence of conditions precedent, implied conditions, substantial performance, and breach of contract (material).
From the beginning of this litigation, Appellant has argued that his Property was damaged by Respondent’s negligence and that he is entitled to compensation for this damage to his Property.
5. Could BTT avoid this contract under the doctrine of mistake? Explain. Would either party have any other defenses that would allow the contract to be avoided?
The jury in this case concluded that C.H. Robinson was vicariously liable based on agency and entered judgment in favor of the plaintiffs in the amount of $23,775,000. $7.25 million went towards Sander’s claims, $8.75 million went towards Sperl’s claims, and $7.78 million went towards Taluc’s claim for injuries under the doctrine of respondeat superior. Vicarious liability assigns liability for an injury to a person who did not cause the injury but who has a legal relationship to the person who did act negligently. Since C.H. Robinson and Dragonfly had a contract, the two companies
The disclaimer of warranties was not unconscionable and therefore was valid and binding on the plaintiff
The fourth element of res ipsa loquitur requires that Gordon is free from “contributory negligence or other responsibilities”, but Colorado adopted comparative negligence. Therefore, the fourth element no longer needed be established.
5. Could BTT avoid this contract under the doctrine of mistake? Explain. Would either party have any other defenses that would allow the contract to be avoided?
47(c). The amount of Plaintiff's damages is substantial and well in excess of the jurisdictional minimums of this Court.
If the contract is breached, the party relying on the exclusion clauses will not be responsible for paying for any damages (Treitel, 1995). If the document does not have any intention for the contract, exclusion clause will not be bound. As it can only be defined in this manner, Harvey also has to
Within a contract there are also exclusion clauses which are clauses that are written down stating if something was to go wrong that one party can avoid or at the very least limit liability for the breach of contract. For an exclusion clause to actually be properly included
The case of Donoghue versus Stevenson was a landmark case in Scottish and English tort law, establishing from that point forward a precedent for identification of negligence as a determination of liability. My colleague's posting provides some interesting insight into how this precedent was arrived at. The posting also leaves room for yet more extensive discussion on the legal implications of the 1932 decision.
When a contract has been broken by the party who suffers by such breach1is entitled to receive from the party who has broken the , contract compensation for any loss or damage caused to him by whch the natural course of things from such breach or which the parties knew when they made the contract ,to be likely to result from breach of it , such compensation is not to be given by the any remote loss or the damage sustained by the reason of breach.