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    Heyy. So I have a problem question to do for contract law and part of the question said that the man could not read the sign because he was short sighted. The sign included an exemption clause. He signed the contract. My question is if you are short sighted, will it affect the exemption clause?
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    (Original post by SaimaH786)
    Heyy. So I have a problem question to do for contract law and part of the question said that the man could not read the sign because he was short sighted. The sign included an exemption clause. He signed the contract. My question is if you are short sighted, will it affect the exemption clause?

    Usually, upon breach of a contract or repudiation, only the
    non-defaulting party’s rights remain, in the form of the defaulting
    party’s secondary obligation. However, s. 9 (1) allows for the courts
    to enforce a term in favour of the defaulting party, even though the
    contract would not normally be seen to be valid, providing the term is
    found to be reasonable. This is true whether the contract has been
    breached or treated as repudiated by either party. Thus, according to
    s. 9 (1), a person can restrict liability on the basis of a reasonable
    exclusion clause, even though normally the contract (and clause) would
    not be valid or have any effect.
    Section 9 (2) allows a defaulting party to still rely upon an
    exclusion clause, even where they have breached the contract and the
    non-defaulting party chooses to affirm rather than terminate it, and
    also provides that their breach alone will not be sufficient grounds
    from which the court can determine the clause to be unreasonable.
    Section 10 ) “A person is not bound by any contract term prejudicing
    or taking away rights of his which arise under, or in connection with
    the performance of, another contract, so far as those rights extend to
    the enforcement of another's liability which this Part of this Act
    prevents that other from excluding or restricting.”
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    Thank youuu. That makes so much more sense to me now. Also, the contract that was signed included exemption clauses. The saleswoman told the customer to check the invoice carefully but did not mention that it contained exemption clauses. Has the saleswoman given reasonable notice to the customer?
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    (Original post by SaimaH786)
    Thank youuu. That makes so much more sense to me now. Also, the contract that was signed included exemption clauses. The saleswoman told the customer to check the invoice carefully but did not mention that it contained exemption clauses. Has the saleswoman given reasonable notice to the customer?
    Deal with each possible source of incorporation separately. It sounds as though there is a sign and an invoice.

    For the sign, first you should consider whether it was given sufficient prominence to bring it to the attention of the reasonable person, going through the usual tests. Then consider whether the particular circumstances of the claimant change things. Look at the case of Thompson v London Midland and Scottish railway - in that case the claimant was illiterate and could not read the exemption clause. The court held that this was irrelevant as the defendant had done enough to bring the exemption clause to the notice of a reasonable person.

    However, in that case the defendant didn't know (and had no reason tot suspect) that the claimant was illiterate. The position could arguably be different here, if, for example, the claimant was wearing very thick glasses and squinting at everything so that the defendant had reason to suspect (or know) that the claimant could not read the sign. Look at the (admittedly obscure) case of Geier v Kujawa for instance.

    For the invoice, you first need to consider whether the contract was formed before the claimant signed the invoice. Assuming that the invoice was the document which formed the contract, then the general rule is that signature incorporates exemption clauses (L'Estrange v Graucob). An exception is where the defendant has misrepresented the contents of the document, leading the claimant to believe that there are no, or less onerous, exemption clauses contained in it (Curtis v Chemical Cleaning & Dying). But it doesn't sound as though there is a misrepresentation here merely by an omission to specifically mention that the document contained exemption clauses. If anything, telling the customer to check the document carefully helps the defendant.
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    (Original post by Forum User)
    Deal with each possible source of incorporation separately. It sounds as though there is a sign and an invoice.

    For the sign, first you should consider whether it was given sufficient prominence to bring it to the attention of the reasonable person, going through the usual tests. Then consider whether the particular circumstances of the claimant change things. Look at the case of Thompson v London Midland and Scottish railway - in that case the claimant was illiterate and could not read the exemption clause. The court held that this was irrelevant as the defendant had done enough to bring the exemption clause to the notice of a reasonable person.

    However, in that case the defendant didn't know (and had no reason tot suspect) that the claimant was illiterate. The position could arguably be different here, if, for example, the claimant was wearing very thick glasses and squinting at everything so that the defendant had reason to suspect (or know) that the claimant could not read the sign. Look at the (admittedly obscure) case of Geier v Kujawa for instance.

    For the invoice, you first need to consider whether the contract was formed before the claimant signed the invoice. Assuming that the invoice was the document which formed the contract, then the general rule is that signature incorporates exemption clauses (L'Estrange v Graucob). An exception is where the defendant has misrepresented the contents of the document, leading the claimant to believe that there are no, or less onerous, exemption clauses contained in it (Curtis v Chemical Cleaning & Dying). But it doesn't sound as though there is a misrepresentation here merely by an omission to specifically mention that the document contained exemption clauses. If anything, telling the customer to check the document carefully helps the defendant.

    One of the exemption clauses stated that all statutory rights must be claimed within seven days otherwise responsibility for any damage or loss will be disclaimed. The man had issues with his product but he claimed it after 12 days. He didn't read the invoice and signed it so he didn't know of this exemption clause. The question asks whether the company can avoid liability for supplying a defective product on the basis of the exemptions contained in the notice AND the invoice

    I started this off by talking about incorporation of signature - it doesn't matter is he hasn't read the invoice. The fact that he signed the invoice means that he has been bound to the conditions and the saleswoman did tell him to read the invoice carefully so notice was given. I am then going to use L'Estrange v Graucoub to back this up.
    I then went on to say that as he claimed 12 days after the incident,the company will be able to avoid liability based on their exemption clause. It was clearly stated in their invoice that it should be claimed within 7 days. He didn't read the invoice so he is at fault but I don't know what case to use for this

    Am I going the right way about this? :/
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    Can't quote your post for some reason.

    Essentially your analysis is missing a step. For exclusion clauses to be effective, you need to show that three tests are satisfied:

    1) Incorporation - The clause must be incorporated into the contract
    2) Construction - The clause must cover the breach in question
    3) The clause must not be contrary to legislation covering exemption clauses - specifically UCTA and UTCCR - where they are relevant.

    You've covered incorporation and I gave some hints as to what to consider for that in my previous post. I'm assuming that the exclusion clause in fact covers the breach of contract in question but you need to discuss that. However, you've skipped analysing whether the exclusion clauses are contrary to legislation.

    You need to go through UCTA carefully and see if firstly, the breach is something which it is possible to cover with an exclusion clause, and secondly, if the clause is required to be reasonable by UCTA that it is. You've only mentioned specifically one of the exclusion clauses so let's have a look at that:

    >>>One of the exemption clauses stated that all statutory rights must be claimed within seven days otherwise responsibility for any damage or loss will be disclaimed. The man had issues with his product but he claimed it after 12 days.

    Look at s.13(1)(a) of UCTA. Stating that a claim must be bought within 7 days will be treated as 'making the liability or its enforcement subject to restrictive or onerous conditions;' and therefore they are prevented 'To the extent that this Part of this Act prevents the exclusion or restriction of any liability'. In other words the time limit on bringing a claim is itself an exclusion clause and must also be reasonable as defined in s.11 and Sch.2 guidelines. You can discuss whether or not it is reasonable, clearly it would depend on the specific item in question and how practicable it was for the man to detect faults with the goods within that period, etc.

    Also, if the man was dealing as a consumer when he made this purchase, then UTCCR will apply to the contract. It's likely that one of the Schedule 2 'terms which may be regarded as unfair' applies to this situation:

    (q) excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly...

    Now none of the bits after particularly... really apply, but this clause does seem to be 'hindering the consumer's right to ... exercise any other legal remedy', and so it could be void under UTCCR as well.
 
 
 
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