This is a question concerning on exclusion clause. Exclusion clause is a clause in a contract or term which appears to exclude or restrict a liability or a legal duty which would otherwise arise. Court have generally treated exclusion clauses as a defence to a breach of an obligation. The issue that arises in the case is whether Jamal can sue Mr Lee and claim for damages. There are four ways which a clause can be incorporated into a contract by the way of; by giving notice, course of dealing, signature and trade usage or custom.
Relating to the problem the clause might be incorporated by notice. Notice of an exclusion clause must be given before or at time of a contract. For an exclusion clause to be effective the party to be bound must have sufficient notice of the clause before or at the time the contract is entered into. Such matter can be seen in the case of Olley v Marlborough Court Ltd.
In the case, the plaintiffs, a husband and wife, paid for lodging at the defendant’s hotel.
In the hotel room, there was a notice on the wall stating that the hotel would not be liable for the theft or loss of any items in the room. The wife’s fur coat was stolen from the room when they went out for a stroll. The defendant argued that the notice in the room was incorporated into the contract. The court held that the notice was incorporated into the contract. The court stated that the notice should not come after the formation of contract.
Applying to the problem, the notice by Mr Lee was given to Jamal in a file containing two pages providing details of the tour one day before the departure. In this matter, the notice obey the court’s ruling in Olley v Marlborough as it is given before time of the contract. Notice in order to be effectively incorporated, the exclusion clause must be in a document where the contractual terms are expected and not merely be found in a receipt. Such matter can be seen in the case of Chapelton v Barry Urban District Council. In the case, the plaintiff wished to hire a desk chair for use on the beach.
At a pile of desk chairs belonging to the defendant council was displayed a notice stating that the hire of chairs was 2d per three- hour session and that the public were requested to obtain tickets for their chairs from a nearby attendant and to retain the tickets for inspection. The plaintiff obtained two chairs from the attendant, paid 4d and took two tickets. On one side of the ticket was the statement that the defendant council would not be liable for any accident or damage arising from the hire of the chair. The plaintiff put the chairs up and sat down on a chair which gaveway, resulting in injury.
The issue which arose was whether the defendant council could rely on the exclusion clause printed on the ticket. The court held that the exclusion clause was found in a ticket which was merely a receipt acknowledging the payment received thus it could not be relied on. Applying to the problem, Jamal was provided of the notice in the form of document which is in contractual nature. Thus Jamal fulfilled the court’s ruling in Chapelton v Barry. An exclusion clause also must be sufficiently brought into the notice of the other party.
This means that an ordinary and reasonable person would have realized that there was an exclusion clause written on the relevant signboard or ticket. In the case of Parker v South Eastern Railway Co the court held that it is not sufficient that the person in question knows that there was writing on the ticket, but that he must know or be given reasonable notice that the ticket contains conditions. Applying to the problem, it is reasonable and sufficient for Jamal to realize the notice of exemption clause was written at the bottom of the page where details of the tour is provided.
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