Questions On The Exclusion Clause

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Research Memorandum Issues 1. Are Clauses 40 and 45 Conditions, and thus, can the breach of these terms by our client give rights for the plaintiffs to terminate the contract? And if not, was the breach of the term severe enough to warrant termination? 2. Is Clause 50 an exclusion clause which sufficiently alters the liability of our client, to the extent which ultimately means that a breach of contract did not occur? Brief Answers 1. Clause 45 would likely be treated by a court as a condition, because of its apparent objective importance in the inception of the contract. Clause 40 would likely be treated as a warranty which is not serious enough to warrant termination, but rather, is limited in compensation to the extent of the damage.…show more content…
This is one of the thresholds for a term to be considered a condition. In Bancks, the majority judgement establishes that “the defendant would not have made the promise” of drawing weekly comics unless “he was assured that his work would be published in a particular manner”, that is, being published on the front page. The nature of the term being key to the inducement of the contract makes it a condition. Did a breach of the clause cause the result to be substantially different from what was stipulated? Another test which determines a condition is whether its breach would cause the intended product to be substantially different to what was contracted. This is also explored in the Bancks case in the justices’ reference to Graves v Legg. In that case, Parke B states that a condition would have the following characteristic – “…a failure to perform it would render the performance of the rest of the contract by the plaintiff a thing different in substance from what the defendant has stipulated for…” Essentially, a condition is characterized by its result upon non-performance. If it greatly alters the intended application of a contract, then it can
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