Exclusion clauses in contracts - Free Essay Example

The issue is whether the exclusion clause Coaches Ltd intends to rely on was incorporated into the contract, and if so whether it is effective in excluding Coaches Ltdà ¢Ã¢â€š ¬Ã¢â€ž ¢s liability. The first point is thus whether the exclusion clause was expressly incorporated into the contract. The clause was printed on the back of the invoice sent to Chelsea Ltd after the telephone booking. As the contract was oral and took place over the telephone, this means that the clause was not expressly agreed to by the parties at the time of making the contract, and it is trite law that a party cannot later unilaterally alter the terms of the contract: Olley v Marlborough Court [1949] 1 KB 532. However, the clause may have been incorporated into the contract at the time the contract was made impliedly. The relevant form of implied incorporation here is implication by course of dealing. For this to be established, three requirements must be met. The first is that there m ust be a course of dealing which was both consistent and regular: McCutcheon v David MacBrayne Ltd [1964] 1 All ER 430. In McCutcheon there had been dealings between the parties on four occasions prior to the one before the court, and the House of Lords found that this was an insufficiently consistent and regular course of dealing to imply a term into the contract. On the other hand, in Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1969] 2 AC 31 there had been three or four dealings a month between the parties over a period of three years, totalling roughly one hundred dealings, and this was found to constitute a course of dealing sufficiently consistent and regular to warrant the implication of a term into the contract. Finally, in Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71 there had been three or four previous dealings between the claimant and the defendant garage over the course of five years. Of these, only in two had the claimant been asked to sign an invoice at the bottom of which the clause in question was printed. The Court of Appeal held, following McCutcheon, that the course of dealing was insufficient to justify the implication of the term into the contract. We are told that Chelsea Ltd had hired a coach from Coaches Ltd à ¢Ã¢â€š ¬Ã…“without any problems for the last few yearsà ¢Ã¢â€š ¬Ã‚ , but we are not given sufficient information to establish, following the cases cited above, whether the course of dealing was sufficiently consistent or regular. The second requirement is that the document in question must have reasonably been expected by the parties to have contractual effect: Chapelton v Barry Urban District Council [1940] 1 KB 532. It could be argued that the invoice in the present instance was not a document which the parties would reasonably have expected to have contractual effect, particularly if the price was agreed over the phone, which would point towards the invoice being a mere post -contractual receipt. This would result in the clause not having been expressly incorporated into the contract: Chapelton (above) and particularly Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163. On the other hand, the document could have contractual effect if, for example, the telephone agreement was subject to the invoice, which had to be signed and returned to Coaches Ltd. Tied in with this is the third requirement that the clause in question must have been reasonably brought to the attention of the other party: Thompson v London, Midland Scottish Rly Co [1930] 1 KB 41. What is reasonable will depend on the content of the clause, as per Lord Denningà ¢Ã¢â€š ¬Ã¢â€ž ¢s famous à ¢Ã¢â€š ¬Ã…“red hand ruleà ¢Ã¢â€š ¬Ã‚  comments in J Spurling v Bradshaw [1956] 1 WLR 461. We are told that the clause was written on the back of the invoice sent to Chelsea Ltd. It is unclear whether there was any reference to the clause on the front of the invoice, or whether Chelsea Ltd was r equired to sign the invoice or in any way take notice of it, or whether it was a mere receipt: whether the clause was reasonably brought to the attention of Chelsea Ltd would depend on these facts. Consequently, it seems that there are grounds to argue that the exclusion clause was not successfully incorporated into the contract, and that Coaches Ltd should therefore not be allowed to rely on it. However, supposing for the sake of argument that the clause had been incorporated into the contract, the second issue to be considered is its validity and effectiveness. The clause in question purports to exclude all liability for (i) personal injury and (ii) damage to customers or their belongings howsoever caused, and the two limbs will be considered separately. Section 2(1) of the Unfair Contract Terms Act 1977 (à ¢Ã¢â€š ¬Ã…“the Actà ¢Ã¢â€š ¬Ã‚ ) precludes a party from relying on a term or notice to exclude or restrict liability for death or personal injury caused by neg ligence (as defined in section 1(1)). Consequently, the first limb of the exclusion clause falls foul of this provision in relation to the purported exclusion of liability for personal injury caused by negligence, and is therefore void in this respect and cannot be relied on by Coaches Ltd. On the other hand, section 2(2) of the Act allows a party to rely on a clause excluding or restricting liability for damage other than death or personal injury caused by negligence, but only in so far as the clause is reasonable. The reasonableness test is set out in section 11(1), and is that the term must be one which it was fair and reasonable to include, having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made. It is for Coaches Ltd to show that the clause is reasonable: section 11(5). Following the Court of Appeal decision in Stewart Gill Ltd v Horatio Myer Co Ltd [1992] QB 600, the c lause cannot be severed by the court, and must be taken as a whole when considering reasonableness. As discussed above, the first limb falls foul of the Act, and this points very strongly towards the whole clause being unreasonable and therefore void. Further, liability is purportedly excluded rather than limited, and the clause is very broadly drafted, further factors which point towards unreasonableness. Finally, it should be noted that even if the clause were valid, it must cover the specific damage in issue to protect the defendant from liability. The approach adopted by the courts in construing exclusion clauses is contra proferentem, i.e. clauses will generally be construed against the party relying on it. However, recent cases such as McGeown v Direct Travel Insurance [2003] EWCA Civ 1606 suggest that the strict approach adopted in decisions such as Andrews Bros (Bournemouth) Ltd v Singer and Co Ltd [1934] 1 KB 17 has now been relaxed, particularly in view of the modern ap proach to interpretation laid out in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 898. In conclusion, it is doubtful whether the clause was incorporated into the contract, and in any event the Act if very likely to prevent its operation. BIBLIOGRAPHY Chitty on Contracts, 29th ed., Sweet Maxwell, 2004 Dobson, Charlesworthà ¢Ã¢â€š ¬Ã¢â€ž ¢s Business Law, 16th ed., Sweet Maxwell, 1997 Keenan and Riches, Business Law, 7th ed., Longman, 2004 McKendrick, Contract Law, 6th ed., Palgrave, 2005 Oà ¢Ã¢â€š ¬Ã¢â€ž ¢Sullivan Hilliard, The Law of Contract, 2nd ed., Oxford University Press, 2006

Computers in law enforcement - 726 Words

There are many ways that people commit criminal activity and there are different solutions to it. Computer is one of the technologies that are used in today’s society mostly by people positively and negatively. This paper will first describe how computers are used in law enforcement. Then, this paper will discover how criminals use this technology and how it causes serious problems for innocent people. Next, this paper will describe how the computer system is or has been helpful in catching criminals and solving the problems. Technology is essentially transforming the face of society and the police work and people are becoming more dependent on them. These technologies such as computer make it easy and possible for organizations and people to get access to, gather, and use many of the information previously unimaginable. Computers can be safe and unsafe tool in the hands of these technologies. In law enforcement, these devices are used to control significant and difficult ca ses in the extent possible kind of circumstances and deal with conflicts related to the use and misuse of such devices. The academic researchers are continuing to discover how technology may perhaps change the society, however, there is little concentration, focusing on how technology may perhaps transform the nature of policing. In a police work, one thing that stays continuous is that law enforcement is about information. This information that solves crimes includes witnesses’ statement,Show MoreRelatedThe Role of Federal Agencies in Fighting Digital Crime774 Words   |  3 PagesSecurity, and other law enforcement agencies have similar challenges when fighting computer crimes and terrorism due to the recent development of computer technologies as well as constant threats. 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Essay on Judith Butler and Postmodern Feminism - 2618 Words

Judith Butler and Postmodern Feminism What necessary tasks does Judith Butler identify for feminist criticism? How is her articulation of and response to these tasks characteristically postmodern? She has no identity except as a wife and mother. She does not know who she is herself. She waits all day for her husband to come home at night to make her feel alive. This sentiment lay buried, unspoken, for many years, in the minds of American women, until In 1960, the problem that has no name bust like a boil through the image of the happy American housewife. Betty Friedan coined the phrase `the problem that has no name during the second wave of feminism in the 1960s. 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My First Accident free essay sample

Disappointment, disbelief, and fear filled my mind as I stood next to my destroyed car. After a few seconds, bad emotions started running through my mind. It was a beautiful hot summer day in July. I was driving home from a fun filled day with friends on the lake, unfortunately I did not make it home right after because I was involved a car accident. What happened that afternoon changed the way I drive, taught me some valuable lessons and came to the conclusion that life is too short to take things for granted. I was coming over a hill when all of a sudden the car in front of me made a sudden stop. I instantly collided with the car. The sick rush of nervousness flowed through my body. I immediately thought to myself, â€Å"Oh no, my parents are going to kill me. Why did this have to happen to me?† I started shuffling though my purse looking for my cell phone. We will write a custom essay sample on My First Accident or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page I find it and instantly call my Mother. â€Å"Hello† my mom said, trying to get the words out through all my tears. I said â€Å"Mom, I was just in an accident.† She tried to calm me down with the words of â€Å"Are you okay? I respond by saying, â€Å"I never want to drive again.† That is when all the bad thoughts starting kicking in. At this point, I am shaking uncontrollably as I manage to try and get out of my car. The lady from the other vehicle runs over to me, and as her voice stutters, manages to ask, â€Å"are you hurt?†. In fear, I respond by saying, â€Å"I’m alright, just a little scared.† As I am trying to get out of the car, the door won’t budge. At this point, I climb over and go out through my back passenger door only to see the whole front side of my car smashed in and glass shattered from the impact. Liquids are starting to flow from underneath my car. In a short distance I begin to see the red and blue lights coming. I waited for the police officer to walk over and approach me, as everything was about to unfold from what just happened. Thinking back to that hot summer day in July, I come to my senses that life’s lessons are to be taken seriously. The accident has taught me to be wiser with my actions; it has taught me that driving is a privilege and not just a game to play. As I close, I can’t express enough as to how this experience has changed me as a person. Attending college at the UW-Milwaukee will be one privilege I challenge myself to, knowing there will be plenty of ups and downs to deal with. I look forward to it and to whatever may hold for my future!