Exclusion and Limiting Clauses

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1. A party seeking to rely upon an exemption clause to exclude or limit its liability for breach of contract it may do so only if two requirements are satisfied. First, the exemption clause must form part of the contract, as demonstrated by L'Estrange v Graucob.In that case the court held that whether the plaintiff had read the small print accompanying the sales agreement or not, he had signed the sales agreement, so must be bound by its terms, which included a statement expressly limiting defendant's liability for breach of warranty. Once the exemption clause is found to form part of the contract, it must also be shown to be wide enough to cover the breach that has occurred. The holding in L'Estrange illustrates this point as well: the plaintiff surely purchased the cigarette machine at issue with the intent that it should work properly; nonetheless, the fine print on the sales agreement expressly limited liability for any breach of warranty. 2. Before Dennis can bring an action against Dicksmith Pty Ltd. ("Dicksmith"), we must first consider whether or not a contract binds the parties. A contract is formed when there is an agreement between the parties when there has been a clear offer by one party expressing a willingness to be bound by certain terms and an unequivocal expression on the part of another to assent to those terms. An acceptance must mirror the terms of the offer, must be close in time to when the offer was made, and must not change the terms of the
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