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