Andrew and Bob-Case-Study-Free-Samples for Students-Myassignment

Questions: 1.Explain what are conditions, warranties and innominate terms of a contract and the remedies an innocent party can have if each of such terms was breached. Please support your answer with relevant case law. 2.Discuss all factors before coming to a conclusion. You should also include cases and relevant statutory provisions in your answer. Answers: 1.A key part of any contract is the terms of the contract, as these terms give rise to the legal rights and duties for the contracting parties. The contractual terms could take the form of conditions, warranties, or can be innominate terms (Mau, 2010). A condition is defined as an important terms of the contract, which is at the base of the drawn contract. In case of a breach of condition, the aggrieved party has the choice of getting the contract repudiated and simultaneously claim damages for the same (Clarke and Clarke, 2016). A leading example of this is the case of Poussard v Spiers (1876) 1 QBD 410, in which a contract was formed for performance as opera singer for three months by Poussard. However, due to her becoming sick 5 days before the opening night, she was unable to perform for the first 4 nights and consequently had to be replaced. The court held that the condition had been breached by Poussard which allowed Spiers to end the contract (Latimer, 2012). Warranties are deemed as the minor terms of contract which do not form a fundamental part for the contracts existence. Where a warranty is contravened, the aggrieved party has the option of claiming damages; however, unlike condition, the contract cannot be ended (Bonell, 2009). In Bettini v Gye (1876) QBD 183, there had been a contract by Bettini to perform as an opera singer for 3 months. Due to his ill health, he missed six days of rehearsals and he was sacked as a result of it. It was held that Bettini breached warranty and so the contract could not be ended since rehearsals were not fundamental to the contract (Latimer, 2012). The concept of innominate terms was given in the case of Hong Kong Fir Shipping v Kawasaki Kisen Kaisha [1962] 2 QB 26. As per this approach, instead of classifying the terms as warranties or conditions, the effect of breach has to be looked at and the questions regarding the aggrieved party having been deprived of the entire benefit of the contract in a substantial manner has to be looked at. The contract would be deemed at an end only when the aggrieved person had been substantially deprived of the entire contractual benefit (McKendrick and Liu, 2015). In the quoted case, a ship had been chartered to the defendant for 2 years. Covered in this agreement was a term that the ship would be seaworthy across the hire period. The troubles were raised when the engine of the ship, along with its engine crew proved to be inept. Consequently, the ship was out of service for a period of five week at first instance and fifteen weeks at later instance. This was deemed as a breach of condition by the defendant and they ended the contract. The plaintiff raised a claim of wrongful repudiation stating the seaworthiness was not the contracts condition. The Court of Appeal held that the defendant had indeed wrongfully repudiated the contract and with this was the innominate term approach introduced. The court stated that twenty weeks out of two year contract period did not result in substantial deprivation to the defendant of the entire benefit and so, the defendant did not have the right to repudiate the contract (Roach, 2016). 2.Issue In the given case study, it is not disputed that Andrew and Bob were injured while they were at a concert organized by the defendants, i.e., NIS and promoters. The issue here relates to whether Andrew and Bob can sue NIS or the promoters of the event for their injuries, due to applicability of exclusion clause or not? Rule An important part of any contract is the exclusion clause. Exclusion clause is such a contractual clause which results in the restriction or limitation on the liability arising for the contractual party. So, the exclusion clause can restrict the liability of a person arising due to breach of contract, negligence and the like. For the validity of any exclusion clause, there is a need for the said exclusion clause to have been included in the contract properly. The exclusion clause cannot limit the application of any statute or statutory instrument, and where an attempt is made to do so, it would be invalid (Treitel and Peel, 2015). It is crucial that the exclusion clause is brought to the notice of the party against which the same is included, particularly when the same is referred elsewhere. In Thornton v Shoe Lane Parking Ltd. (1971) 1 All ER 686, the plaintiff got injured due to the negligence of the defendant. The plaintiff had been given a ticket for entering into the part and the backside of this ticket covered the exclusion clause. When the matter reached the court, they stated that this exclusion clause was not valid in this case due to the improper incorporation of the same into the contract (Poole, 2016). In Olley v Marlborough Court [1949] 1 KB 532, a hotel was booked by the plaintiff. The contract had been formed at the reception desk and the exclusion clause was never mentioned. In the room of the hotel, the backside of the door covered the notice for excluding the liability for lost, damaged or stolen property, over the hotel proprietors. The fur coat of the plaintiff was stolen and the matter reached court. The court held that the notice would not be deemed as effective, as the contract had been made before the plaintiff saw the notice and did not form a part of the contract (Stone and Devenney, 2017). However, there is reasonableness with regards to bringing the clause to the attention of the parties. In Thompson v London, Midland and Scotland Railway Co [1930] 1 KB 41, the court held that the display of prominent notice on platforms was enough to deem the exclusion clause as been properly incorporated. The only thing was to take the reasonable step in bringing the exclusion clause to the notice of a rationale party. And there was not a duty of ensuring that every traveller was aware of this clause. Hence, the plaintiff failed in claiming damages from the defendant (Mulcahy, 2008). Application The case study given here shows that the exclusion clause was covered at the backside of the ticket when Andrew and Bob purchased the ticket. This is similar to what happened in Thornton v Shoe Lane Parking Ltd, In Thornton v Shoe Lane Parking Ltd. (1971) 1 All ER 686, the plaintiff got injured due to the negligence of the defendant. The plaintiff had been given a ticket for entering into the part and the backside of this ticket covered the exclusion clause. In the opinion of the court this exclusion clause was not valid in this case due to the improper incorporation of the same into the contract. For the poster at the side of the counter, Olley v Marlborough Court would make it invalid as the defendants did not bring it to the notice of the party. However, the applicability of Thompson v London, Midland and Scotland Railway Co would make it valid as this exclusion clause was brought to the notice of a rationale party. The choice of Andrew to not read it cannot be blamed on the defendants. Conclusion Thus, on the basis of this discussion, it can be concluded that the exclusion clause was valid and Andrew and Bob would fail in their claim against the defendants for their injuries, due to applicability of exclusion clause. References Bonell, M.J. (2009) An International Restatement of Contract Law:The Unidroit Principles of International Commercial Contracts. 3rd ed. New York: Transnational Publishers, Inc. Clarke, P., and Clarke, J (2016) Contract Law: Commentaries, Cases and Perspectives. 3rd ed. South Melbourne: Oxford University Press. Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited. Mau, S.D. (2010) Contract Law in Hong Kong: An Introductory Guide. Hong Kong: Hong Kong University Press. McKendrick, E., and Liu, Q. (2015) Contract Law: Australian Edition. London: Palgrave. Mulcahy, L. (2008) Contract Law in Perspective. 5th ed. Oxon: Routledge. Poole, J. (2016) Textbook on Contract Law. 13th ed. Oxford: Oxford University Press. Roach, L. (2016) Card and James' Business Law. 4th ed. Oxford: Oxford University Press. Stone, R., and Devenney, J. (2017) The Modern Law of Contract. 12th ed. Oxon: Routledge. Treitel, G H., and Peel, E. (2015) The Law of Contract. 14th ed. London: Sweet and Maxwell.