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Hi, I'm doing some work on exemption clauses.

A man is short- sighted and does not see a notice a sign behind a counter stating, "All cars are guaranteed for three months, thereafter we accept no responsibility for damage or defects" The man bought the car, but did not read the exemptions, which the saleswoman advised him to do so. The statement is "All statutory rights must be claimed within seven days otherwise we disclaim all responsibility for any loss or damage howsoever caused." The breaks failed three months later, the man sustained injuries and did not claim compensation until ten days after the accent.

I need to discuss whether the car dealership can avoid liability to the man, including common and statutory law.

Being the man is short-sighted, it was not brought to his attention. Therefore the notice does not become part of the contract, using Thornton v Shoe Lane Parking.
Am I correct?

I also need a boost on how to start the second part of the problem, the exemption in the invoice.

Thanks
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(Original post by RTS1)
A man is short- sighted and does not see a notice a sign behind a counter stating, "All cars are guaranteed for three months, thereafter we accept no responsibility for damage or defects"

Being the man is short-sighted, it was not brought to his attention. Therefore the notice does not become part of the contract, using Thornton v Shoe Lane Parking.
I don't necessarily agree. The incorporation of an exemption clause into a contract cannot depend on the idiosyncracies of one party which are unknown to the other. Look, for example, at Thompson v London, Midland, and Scottish Railway - irrelevant that the plaintiff could not read the exemption clause printed on the back of the ticket because the railway had no idea that she was illiterate.

The position might be different if the defendant in the Thompson case knew that the woman was illiterate, or in your case, if the defendant knew that the man could not read the sign. Look at Geir v Kujawa - the plaintiff was not bound in that case because the defendant knew that the plaintiff could not read any English.
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I don't necessarily agree. The incorporation of an exemption clause into a contract cannot depend on the idiosyncracies of one party which are unknown to the other. Look, for example, at Thompson v London, Midland, and Scottish Railway - irrelevant that the plaintiff could not read the exemption clause printed on the back of the ticket because the railway had no idea that she was illiterate.

The position might be different if the defendant in the Thompson case knew that the woman was illiterate, or in your case, if the defendant knew that the man could not read the sign. Look at Geir v Kujawa - the plaintiff was not bound in that case because the defendant knew that the plaintiff could not read any English.

Thanks,
In other words, the notice was brought to her attention despite the face that she is short-sighted?

The saleswoman said to read the exemption clauses, which was not read. 3 months later the cars breaks failed and it collided with a tree, which caused injuries. Compensation was brought until 10 days after the accident. The invoice stated "All statutory rights must be claimed with 7 days, otherwise we disclaim all responsibility for any loss or damage caused'.
Do you think that the car dealership can avoid liability for supplying a defective car on the exemption clauses contained in the invoice?

Notice was given because the saleswoman said to read the exemption clauses.
correct?
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(Original post by RTS1)
Thanks,
In other words, the notice was brought to her attention despite the face that she is short-sighted?

The saleswoman said to read the exemption clauses, which was not read. 3 months later the cars breaks failed and it collided with a tree, which caused injuries. Compensation was brought until 10 days after the accident. The invoice stated "All statutory rights must be claimed with 7 days, otherwise we disclaim all responsibility for any loss or damage caused'.
Do you think that the car dealership can avoid liability for supplying a defective car on the exemption clauses contained in the invoice?

Notice was given because the saleswoman said to read the exemption clauses.
correct?
re. notice - general rule to be gathered from the cases is that you must do enough to bring the notice to the attention of a reasonable person. You don't need to make allowances for the defendant's characteristics unless you know of them. So to pick an obvious example, if a clearly blind person comes up to the counter tapping his white stick, a written notice will not incorporate an exemption clause no matter how large it is written. If the next person who walks up to the counter is dyslexic, the clause will be incorporated vis-a-vis them because there is generally no outward sign that someone is dyslexic.

If you think about, this rule is logical because if the party seeking to rely on a clause is 'on notice' that the other party can't read it, they can do something about it (for example read it aloud). If they have no way of knowing that the other person can't read it then there is no reason they should have done something about it.

Moving on to the invoice, you need to ask the usual questions to see firstly if the clause is incorporated. Is the invoice a 'contractual document', i.e. was it provided at or before the time of contracting. An invoice given after the contract was formed cannot incorporate terms into the contract (Olley v Great Marlborough Court). Was it a document that would be expected to contain contractual terms (Chapelton v Barry UDC)? Clearly the answer to the second question is 'yes', since the customer was told that it contained contractual terms. Was the invoice signed? If yes, then following L'Estrange v Graucob the terms will be incorporated even if they are onerous. If no then has enough been done to incorporate onerous terms - look at Interfoto v Stiletto for instance.

If you decide the clause is incorporated you next need to decide if it is contratry to legislation. If the purchaser is a consumer, or the invoice represents the companies standard terms of business then s.3(2) UCTA applies. A clause providing for a shorter than usual limitation period does 'restrict any liability in respect of his breach'. It needs to be reasonable under the guidelines in s.11 and Schedule 2. If the purchaser is a consumer then UTCCR applies as well, so look at Reg.5 and the list in Schedule 2 (hint, look at sentence (q) in Sch 2). Might not be relevant to your question but worth remembering that a company can be a consumer for the purposes of UCTA but cannot be a consumer for the purposes of UTCCR.
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(Original post by Forum User)
re. notice - general rule to be gathered from the cases is that you must do enough to bring the notice to the attention of a reasonable person. You don't need to make allowances for the defendant's characteristics unless you know of them. So to pick an obvious example, if a clearly blind person comes up to the counter tapping his white stick, a written notice will not incorporate an exemption clause no matter how large it is written. If the next person who walks up to the counter is dyslexic, the clause will be incorporated vis-a-vis them because there is generally no outward sign that someone is dyslexic.

If you think about, this rule is logical because if the party seeking to rely on a clause is 'on notice' that the other party can't read it, they can do something about it (for example read it aloud). If they have no way of knowing that the other person can't read it then there is no reason they should have done something about it.

Moving on to the invoice, you need to ask the usual questions to see firstly if the clause is incorporated. Is the invoice a 'contractual document', i.e. was it provided at or before the time of contracting. An invoice given after the contract was formed cannot incorporate terms into the contract (Olley v Great Marlborough Court). Was it a document that would be expected to contain contractual terms (Chapelton v Barry UDC)? Clearly the answer to the second question is 'yes', since the customer was told that it contained contractual terms. Was the invoice signed? If yes, then following L'Estrange v Graucob the terms will be incorporated even if they are onerous. If no then has enough been done to incorporate onerous terms - look at Interfoto v Stiletto for instance.

If you decide the clause is incorporated you next need to decide if it is contratry to legislation. If the purchaser is a consumer, or the invoice represents the companies standard terms of business then s.3(2) UCTA applies. A clause providing for a shorter than usual limitation period does 'restrict any liability in respect of his breach'. It needs to be reasonable under the guidelines in s.11 and Schedule 2. If the purchaser is a consumer then UTCCR applies as well, so look at Reg.5 and the list in Schedule 2 (hint, look at sentence (q) in Sch 2). Might not be relevant to your question but worth remembering that a company can be a consumer for the purposes of UCTA but cannot be a consumer for the purposes of UTCCR.
Thank you so much, really appreciate it.
Can you please help me with misrepresentation?

A salesman told a lady that a specific type of DVD player for her business was "sophisticated, yet user friendly' which the lady believed to be true.
I think INDUCED?

He also said, "in my opinion, this model will be perfect for you, as the sound volume is superb'. However, that specific type of DVD player was brand new and the salesman did not know anything about it. The lady declined to listen to the DVD player, and bought the DVD player on the basis of what she was told by the salesman.
FACT OR INDUCED?

Days later she discovered that the DVD player was not suitable for her business, was not user friendly and the sound quality was poor.

Must advice of contractual rights and remedies.
Remedy- Negligent Misrep.
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