Contract Law Paper 2 PDF

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Teacher: Elliot...

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SCHOOL OF LAW MIDDLESEX UNIVERSITY EXAM ANSWER BOOKLET Academic Year 2020/21 – January 2021 LAW1108 CONTRACT LAW; PAPER 2 Dr Elliot Schatzberger

Time allowed:

2 hours This exam paper does not require more than the initial time allocated to this exam to be completed. The extra time you have been provided with to account for the extra steps exams taken remotely require.

Instructions to candidates:

Students must answer THE ONE SEEN QUESTION from the exam paper released on 18 January 2021 at 10.00 UK Time All questions carry equal marks

Maximum word count:

1,500 words Text above 10% of the word count will not be graded

Candidates must submit this document via Turnitin WITHIN the exam time. This is an OPEN BOOK EXAM. However, Students MAY NOT CONSULT or DISCUSS THE CONTENT of this exam with ANY PERSON WHOMSOEVER. Save this document on your computer before uploading it via Turnitin

QUESTION 1:

L’Estrange v Graucob [1934] The case of L’Estrange v Graucob (1934) created a very good example and precedent of the term ‘written incorporation’, which means it has to be written in the terms of the contract for it to be valid. This is an exclusion clause which are terms of a contract that limit the liability of one or both parties. The case was about a bar owner (L’Estrange) who purchased from a company (Graucob) which manufactures cigarette machines. Once she purchased them both parties signed a binding contract to complete the purchase. The machines worked in good condition for a small amount of time until a certain point. Until the machines on many occasions would not dispense the cigarettes when a customer has correctly paid for them. L’Estrange went to sue the company Graucob due to this issue and loss of profit as she had to repay for the cigarettes which didn’t come out. Graucob refused to take any liability due to the fact that they were not liable for this issue. They argued that in the contract which was signed by both parties it stated that Graucob would not take any responsibility or liability if there were any issue with this machine. As in the contract which was signed by both parties there was an exclusion clause which excluded any liability, able to be seen in the contract by both parties, also the contract was signed before the purchase of goods. As you see this case is extremely important for the method of exclusion causes called written incorporation as it established this. However, there is an exception to this exclusion clause which may invalidate a contract. This case is important to this exclusion cause as it sets a precedent for future cases and it also allows the claimant to have a greater case for exclusion clauses. It allows consumers to look out for these clauses preventing any problems. this clause allows companies to limit the liabilities. Her claim was unsuccessful due to the fact that she was bound by all the terms whether she read it or not and it was clear for her to see and read.

Chapelton v Barry UDC (1940) The case of Chapelton v Barry UDC (1940) is an exception to the exclusion clause ‘written incorporation’. This specific case refers to when the actual clause is presented not just it being written in the contract. In this case, Chapelton went to a beach in Barry and decided to rent a chair to be able to sit on the beach. Chapelton paid and after got a receipt for the chair and sat on it to relax at the beach. His clothing got damaged and decided to sue the council. However, they argued back saying on the receipt Chapelton was given it stated “We the Barry Council are not liable for any damage caused to you or your clothing” therefore we are not liable. The courts said that is incorrect due to the fact that it was not where it should have been. It has to be before the contract has been entered. Chapelton then won the case due to this. This case is important to this exclusion cause as it sets a

precedent for future cases and it also allows the claimant to have a greater case against exclusion clauses. It also allows people using these clauses to become more aware of when they are supposed to present it. The high court stated that the receipt did not create that term of the contract.

Olley v Marlborough Court Hotel (1876) The case Olley v Marlborough Court Hotel (1876) is an example of the ‘incorporation by notice’ exception to the exclusion clause which means the clause has to be brought to the notice of the part, whether it being before the contract binding or during it. This case is about Mr and Mrs Olley spending who stayed in the Marlborough Court Hotel. They entered the hotel and paid for one room so they can stay the night. Once they get to their rooms they decided to go out for dinner and was worried to go out in her fur coat and jewellery, so they leave it in a wardrobe in the hotel room. On the way out they see a notice which says “Management accept no liability during your stay here” on the hotel room door. Then the hotel negligently let a burglar into the hotel room who then steals the items. Mr and Mrs Olley then sue the hotel, however, they say they had a notice on the door. This notice is incorrect due to it being after they entered a binding contract, and the notice was not seen or present at the time the contract was being made. This case helps reinforces the case of Parker v South Eastern Railways (1876) as the cases are similar in exception and circumstances. This case is important as it gives precedent in another situation which helps the claimants case and helps the court in understanding the case.

Thornton v Shoe Lane Parking (1974) The case of Thornton v Shoe Lane Parking (1974) is also about the ‘incorporation by notice’ exception clause. In this case, Thornton had to paid to get into the park so the barrier can go up. As he enters the car park, he sees a notice on the wall stating that the management does not accept liability for loss of valuables or damage. He decided to take a chance and proceeds to walk out of the car park. Some bricks fell onto his car from the construction next to the car park and damaged his car. He then sues Shoe Lane Parking. They tried to defend their case with the notice they had put up, however, the sign was wrong on two grounds. The first one being that the sign was in the car park and you had to pay to enter therefore entering a binding contract before the sign is seen. Second is that the sign was not clear enough to be seen from the car. This case is important as it establishes the fact that the exclusion clauses are supposed to be viable and before the two parties enter the contract.

Hollier v Rambler Motors (1972) This case is about the exclusion clause ‘previous dealings’ this means that you have had dealings with the company and or place many times before and should have seen the clauses or the notices. Hollier takes his car to Rambler Motors to get his

cars yearly MOT done and has had four dealings before. As he leaves his car for his MOT to be done the garage burns durn with his car inside it. Hollier takes them to court but as a defence, they said they had a notice up saying they accept no liability for loss or damages to cars. Even if he had not seen the sign before, Hollier still lost the case due to ‘previous dealings. He has been there for a total of 5 times and had more than enough visits to see the sign. This case is important as by law by going to the area you are expected to read the notices and know they are there if you have been there multiple times. Therefore, Hollier’s case was unsuccessful on the basis of previous dealings.

White v John Warwick (1953) In this case, the claimant who is Mr White who got injured while he was riding the bike which was rented from John Warwick. They entered a written agreement which included “Nothing in this agreement shall render the owners liable for any personal injuries”. However, the defendant injured themselves as the seat tilted forward. The Court of Appeal stated that the defendant was liable due to negligence. They also stated the clause was ambiguous therefore, the contra proferentem, which means it must be clear, rule was applied. The exclusion course excluded liability for negligence but not liability for a defective bicycle. Also, under The Unfair Contract Terms Act 1977 s2(1) as they can’t exclude liability for personal injury, however, this act was created after the case. This case shows that as the wording on the sign was not clear people were unable to read it or see that it is a sign. Exclusion clauses must not be able to be misinterpreted in any way.

I confirm that this is entirely my own work, and I did not receive any help or assistance from anyone at any point during this exam. ☒...