...complained of comes strictly within the terms of the clause. If it is in any way ambiguous then it will be interpreted against the party attempting to enforce it this is referred to as the contra proferentem rule. Andrews Bros. v Singer [1934] 1 KB 17 There was a contract to purchase new Singer Cars; the contract contained a clause excluding “guarantees or warranties, statutory or otherwise”. One of the cars delivered to the dealer was a used car. The plaintiff sued Singer (defendants); they tried to rely on the exemption clause. Held – The stipulation as to the suitability of the car was a condition, not a guarantee or a warranty, and as such was not covered by the exemption clause. The term “new singer cars” was an express term. An exclusion of liability in respect of implied terms could not cover liability under the express term. This is particularly so if there is any ambiguity in the term White v John Warwick & Co Ltd [1953] 2 All ER 1021 The plaintiff hired a bicycle from the defendant under a written agreement which included a provision that "nothing in this agreement shall render the owners liable for any personal injuries". The plaintiff was injured when the saddle tilted forward, Held - The Court of Appeal found the defendant liable in negligence. The exclusion clause was sufficient to exclude liability for supplying a defective bicycle, but it was not sufficient to exclude liability for negligence, only liability for implied terms. However it must be stressed that...
Words: 1587 - Pages: 7
...comes strictly within the terms of the clause. If it is in any way ambiguous then it will be interpreted against the party attempting to enforce it this is referred to as the contra proferentem rule. Andrews Bros. v Singer [1934] 1 KB 17 There was a contract to purchase new Singer Cars; the contract contained a clause excluding “guarantees or warranties, statutory or otherwise”. One of the cars delivered to the dealer was a used car. The plaintiff sued Singer (defendants); they tried to rely on the exemption clause. Held – The stipulation as to the suitability of the car was a condition, not a guarantee or a warranty, and as such was not covered by the exemption clause. The term “new singer cars” was an express term. An exclusion of liability in respect of implied terms could not cover liability under the express term. This is particularly so if there is any ambiguity in the term White v John Warwick & Co Ltd [1953] 2 All ER 1021 The plaintiff hired a bicycle from the defendant under a written agreement which included a provision that "nothing in this agreement shall render the owners liable for any personal injuries". The plaintiff was injured when the saddle tilted forward, Held - The Court of Appeal found the defendant liable in negligence. The exclusion clause was sufficient to exclude liability for supplying a defective bicycle, but it was not sufficient to exclude liability for negligence, only liability for implied terms. However it must be stressed...
Words: 1587 - Pages: 7
...Standard Form Contract For Amazon Section 1 - A Breakdown of all terms and conditions 1) ------------------------------------------------- It is very important to have both Conditional terms and warranties in a contract. Find 2 examples of each. Two Conditional terms 1) You may not misuse the Amazon service. You may use the Amazon services only as permitted by law. The licenses granted by Amazon terminate if you do not comply with these Conditions of use or any service terms. In plain English this means: If you don’t abide to the company laws and services, the company has the right to terminate the contract and not serve the specific customer again. 2) You may also not create and/or publish your own database that features substantial parts of any Amazon service (e.g. our prices and product listings) without our express written consent. In plain English this means: you cannot copy the main parts of the amazon service without the company’s permission. For example if you copied the company’s product listings, that is a breach of the condition. Two Warranties 1) Amazon respects the intellectual property of others. If you believe that your intellectual property rights have been used in a way that gives rise to concerns of infringement, please follow our Notice and Procedure for Making Claims of Right Infringements. In plain English this means: this means if you believe that your intellectual property rights have been used you have the right to report this...
Words: 1677 - Pages: 7
...However, one day he returned to his car to find that it had been badly damaged by a towing vehicle driven by an employee of Bash Ltd. Whilst on his way to the car park office to complain he was hit by the same towing vehicle, which was clearly being driven dangerously by one of Bash Ltd’s employees. As a result, not only was his car severely damaged, but he suffered a broken leg and was off work for eight weeks. Bash Ltd has accepted that its employee was negligent on both counts but denies any liability, relying on the exclusion clause Required: On the understanding that the clause excluding Bash Ltd’s liability was incorporated into its contract with Andy, advise Andy whether there is any action he can take against Bash Ltd. Given that the question scenario clearly states that the exclusion clause was incorporated into the contract between Andy and Bash Ltd (and there can be no doubt that it is), it is only necessary to consider the effect of the clause. On the basis of the clear wording, it would appear that the wording of the exclusion clause is sufficiently clear and specific to cover Bash Ltd’s negligence. As a consequence, it only remains to consider how the legislation governing exclusion clauses would be likely to deal with this particular clause in the context of the question. The...
Words: 483 - Pages: 2
...Exclusion And Limiting Clauses INTRODUCTION A clause may be inserted into a contract which aims to exclude or limit one party's liability for breach of contract or negligence. However, the party may only rely on such a clause if (a) it has been incorporated into the contract, and if, (b) as a matter of interpretation, it extends to the loss in question. Its validity will then be tested under (c) the Unfair Contract Terms Act 1977 and (d) the Unfair Terms in Consumer Contracts Regulations 1999. A. INCORPORATION The person wishing to rely on the exclusion clause must show that it formed part of the contract. An exclusion clause can be incorporated in the contract by signature, by notice, or by a course of dealing. 1. SIGNED DOCUMENTS If the plaintiff signs a document having contractual effect containing an exclusion clause, it will automatically form part of the contract, and he is bound by its terms. This is so even if he has not read the document and regardless of whether he understands it or not. See: Struggling with your Law studies? We can help! Have a look at our huge range of products and services that may be useful when planning your next law assignment or essay. Law Essay Writing Service Essay Marking Service Our Guarantees Our quality promise Freelance Writing Jobs Place an Order L'Estrange v Graucob [1934] 2 KB 394. However, even a signed document can be rendered wholly or partly ineffective if the other party has made a misrepresentation as...
Words: 2419 - Pages: 10
...moved into a contract of sale as circumscribe in section 2 (1) SGA, which says that a contract of sale of commodities is a contract by which the dealer agree to hand over the possession of goods to the customer for payment in money, termed as the price. Notwithstanding the conditions of the contract have been fabricated in order to pass over the indispensable rights of the individuals of this contract. The conditions of the contract mention the specific responsibilities and commitment of each individual to the contract. We must seem at the implied terms of this contract in order to incline to the considered objectives of the contracting individuals by way of affirming the demonstrated terms and creating a causal link to those that are not boldly demonstrated In directing the tacit terms for the protection of the people that are to be are established and thus gives rise to any reparation that may be provided by these specifications. 2. THE TWO METHOD BY WHICH CERTAIN TERMS OF A CONTRACT ARE IMPLIED There are two methods by which terms are implied in a contract. By custom, the court and by statute. Normally the terms that has been implied by a custom or the trade usage explain those terms in a conventional way as those circumstances are the common situation within the business context. For instance a case, Mr Deborah buys a car from a well reputed showroom car and so it is expected that the car has to be adequate for its function. This genre of implied terms normally acts...
Words: 1932 - Pages: 8
... administrative law, equity etc. In business world, we use different kinds of law & law of contracts is one of the most widely used business law which is basically used to understand future business related The Aspects of Contracts & Negligence for Businessissues in more predictable manner by people engage in contracts. Contract is basically a promise that gives the official commitment that the law will be enforced.Judicial activism, which creates law to be less predictable & more flexible, & judicial restraint, which makes law more predictable & less flexible, is two important issues closely related to contracts that need to be defined properly. Task 1: P1- The essential element of valid contracts in a business context: A contract, to be valid in a business context, must have some essential elements which can be basically classified in four major categories- ð Agreement- In every contract, there must be an agreement between two parties where one party needs to make any kind of valid offer & the other party needs to accept the offer made. ð Consideration- To be valid, every contracts must have some consideration on the basis of which they engage in the contract. There must be exchange of something. The subject matter of the contract may vary from contract to contract. ð Intention to Create Legal Relationship- The subject matter & everything related to the contract must be legal & there should...
Words: 1731 - Pages: 7
...Individual Project Contracts and Privacy Issues - Contracts BUSN150 – Legal and Ethical Environment of Business Professor Eric Baime June 30, 2013 Contracts and Privacy Issues - Contracts 1. What is the difference between an express and an implied contract? A unilateral and a bilateral contract? A contract that is void or voidable? 2. What elements must be in place for formation of a contract? 3. What are three examples of valid consideration? Abstract In this paper the reader will be able to know the different between express and implied contract, unilateral and bilateral contract, and contract that is void or voidable. You will also know the elements you must place for formation of a contract. In conclusion three examples of valid consideration will be given. Introduction What is a contract? Contract a promise or set of promises for reach of which the law gives a remedy, or performance of which the law in ways recognizes as a duty. Contracts are like a set of voluntary promises that the law will enforce for private parties. There are many different types of contracts, and there are differences between the contracts. Explanation of the different types of contracts will be identified below. Differences Contracts are sometimes referred to as express or implied. Implied contract is agreement that is formed by nature of the conduct or behavior of a party, rather than words (contract.uslegal.com). Basically in order for this contract to be enforcing legally...
Words: 889 - Pages: 4
...Warranty An assurance or promise in a contract, the breach of which may give rise to a claim for damages. It is essentially a minor term of a contract. A warranty, is a minor term, collateral to the main purposes of the contract, for breach of which the innocent party has a right to damages while remaining bound to perform his own liability’s under the contract. Property law an agreement, express or implied, by which the merchant of genuine property vouches for security of the title passed on. Contract law an express or implied term in an agreement, for example, an endeavor that products contracted to be sold might meet indicated necessities as to quality. Insurance law an endeavor by the party safeguarded that the facts given regarding the...
Words: 849 - Pages: 4
...Cover Sheet Qualification | Unit Number and Title | Pearson BTEC Level 5 HND Diploma Business (Accounting) | Unit 5: Aspects of Contract and Negligence for BusinessUnit Code: Y/601/0563Credit Value: 15 Credits | Student Name | Assessor Name | Mukaram Khan Swati | Salman Haider | Date Issued | Completion Date | Submitted On | Validity | 7th October,2013 | 4th November,2013 | | 1st Oct, 2013-31st Jan,2013 | Assignment Title | Contract and Negligence | Assignment Number | 05AOCANFB- Y/601/0563-13 PKISL7002 | Hand In Policy You must complete this assignment on time. If u experience difficulties, you must inform your tutor accordingly. Late Work Policy Consideration will be given to students who have valid reasons for late submission (eg, Illness) Plagiarism In case of plagiarism, college regulations will be applied. You must declare that this assessment is your own work by signing the following statement: Learner Declaration | I certify that the work submitted for this assignment is my own and research sources are fully acknowledged.Student Signature: Date: | Table of Contents Acknowledgement 6 Research Method 7 Aims and Objectives 8 Literature Review 9 Abbreviation List 10 Introduction 11 Task 1 12 Essential Elements of a Contract 12 1. Offer and Acceptance 12 2. Lawful Consideration 12 3. Intention to Create Legal Relationship 12 4. Capacity of Parties...
Words: 5420 - Pages: 22
...Introduction Contract Management and Negotiation Contract management is the management of contracts made with, vendors, employees, partners, or customers. The personnel involved in Contract Management required to support, negotiate and manage effective contracts are expensive to train and retain. It includes negotiating the terms and conditions in contracts and ensuring that the terms and conditions are complaint. It also includes agreeing on and documenting any changes or amendments that may arise during its implementation or execution. Contact Management can be summarized as the process of efficiently and systematically managing creation of contract, its respective execution, followed by analysis in order to get best possible financial and operational performance while minimizing risk. Commonly commercial contracts include purchase orders, employment letters, utility contracts & sales invoices. These type of complex contracts are generally necessary for highly regulated goods or services, construction projects, goods or services with detailed technical specifications, intellectual property (IP) agreements & international trade etc. Types of Contracts Contracts under Seal: Traditionally, a contract was an enforceable legal document only if it was stamped with a seal. The seal represented that the parties wanted the agreement to have legal consequences. It was not meant to give legal benefit or detriment to any party, since the seal was a symbol of the acceptance of the...
Words: 1647 - Pages: 7
...to refund, repair or replacement. Metal-Matic expressly made its assent conditional upon Krack’s assent of the disclaimer. Krack’s purchase order did not have this provision and they never formally assented. During the ten years one of Krack’s managers objected to the terms of the disclaimer, but both parties continued to do business. In February 1981, Krack sold a unit to Diamond Fruit Growers that leaked. Rule of Law: Under the UCC §2-207 when the purchase order and acknowledgment form state different terms the additional terms are construed as a proposal and become part of the contract unless: The offer expressly limits acceptance conditional on assent to the terms of the offer. Issue: Are the additional terms of Metal-Matic’s disclaimer of liability part of the contract when its agreement is expressly conditioned on its assent to the additional terms? Decision and Opinion: One application goal of the UCC§2-207 is aimed at commercial transactions where parties exchange printed purchase order and acknowledgement forms. Since the drafters of the UCC understood that forms were drafted leaning toward the thinking of the drafters and often the forms do not correspond. UCC §2-207 provides rules of contract formation in these instances where forms do...
Words: 666 - Pages: 3
...Cost-Plus Contracts Cost-Plus Contracts Short Answer Question 3 This contract consists of both terms and representations. The terms are the provisions that form part of this contract. Each term that is contained in this contract will give rise to contractual obligation. If the terms are breached, litigation will be inevitable. However, the terms in this contract are not necessarily stated. Some of the terms in this contract attract little legal consequences because they are considered to be subordinate to the main objectives of the contract. Statements also form part of this contract. These statements are those that are capable of creating contractual obligations. The following types of statements may be contained in this contract: a). Puff or sales talk. A puff will not give rise to contractual obligation especially if it lacks the backing of a reasonable person who could actually take the statement seriously. This will be amplified if the statement is further proved to be wrong. Such kind of a statement will be a puffery as is common with commercials in televisions. b). Representation. Any factual statement will not be considered as a contractual term. This statement is made by the owner; however the owner does not offer a guarantee regarding how honest it may be. Such a statement according to this contract will give rise to any contractual obligation between the owner and the builder. However, other remedies may be pursued by the aggrieved party, i.e. tortuous...
Words: 1719 - Pages: 7
...Breach of Contract - A contracting party’s failure to perform an absolute duty owed under a contract. Covenant – An unconditional promise to perform Duress – A situation in which one party threatens to do a wrongful act unless the other party enters into a contract Executed Contract – A contract that has been fully performed on both sides; a completed contract. Injuction – A court order that prohibits a person from doing a certain act. One year rule – A rule which states that an executor contract that cannot be performed by its own terms within one year of its formation must be in writing. Rescind – The act of a non-breaching party to undo a contract where the other party to the contract has caused a material breach of the contract. Statutes of Fraud – A state statute that requires certain types of contracts to be in writing . Unilateral Mistake – A Mistake in which only one party is mistaken about a material fact regarding the subject matter of contract. Bad Faith – An element that must be proven in order to find a violation of the anticybersquatting Consumer Protection act (ACPA) Domain Name – A unique name that identifies an individual’s or company’s website. License – A business arrangement that occurs when the owner of intellectual property ( the licensor) contracts to permit another party ( the licensee) to use the intellectual property. Licensee- The party to whom a license is granted Abusive homestead exemption - A bankruptcy...
Words: 829 - Pages: 4
...International Corporation Case Brief Issue: This is a case of breach of an express warranty, subsequent decision, and appeal in the State of Kansas and the issue is whether or not breach of an express warranty warrants an award of damages under the Uniform Commercial Code. Facts: Harold Brown, TransAmerica's president, purchased 10 production injection packers typically used for temporary purposes, but advertised as a permanent solution. With most shipments, an invoice was included that contained language disclaiming express or implied warranties and limiting the purchaser's remedies. The statute of limitations pursuant to this case is four years. Under Kansas law, advertising may form a part of an express warranty. The written documents the defendants rely on were each titled "Sales and Service Invoice." The introductory sentence on the face of the invoice above the signature line for the purchaser's agent [**10] begins, "I certify that the above materials or services have been received." That sentence also purports to require the person signing to declare that he or she is authorized to sign the memorandum as agent of the owner or contractor. These words indicate that the document is a delivery receipt and possibly a billing statement, but not a fully integrated contract. The sentence above the agent's signature line also declares that the "materials or services have been received on the terms and conditions set forth on the reverse side hereof, which the undersigned...
Words: 922 - Pages: 4
