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Exclusion Clause Sample

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Introduction
The central issue in this case was whether the exclusion clause was being successfully incorporated into the contract between Aaron and EFG Pte Ltd (“EFG”).
Exclusion Clause
An exclusion clause is a term that seeks to exclude or limit liability between parties in the event of contractual breach. It should be incorporated by signature [L’Estrange v Graucob (1934)], by notice [Olley v Marlborough Court Ltd (1949)] or by previous course of dealing [La Rosa v Nudrill Pty Ltd (2013)]. The clause has to be implied or expressed to the contracting party before or at the time where the contract was concluded. In Aaron’s case, the timing of forming the contract was vital. Aaron may argue that the exclusion clause was not incorporated in
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As a result, the clause was not enforceable since the notice was seen in the guest room after the contract has made. In Aaron’s case, the term “EFG Pte Ltd shall not be liable for any loss or damage however caused to customers’ premises” was printed on the delivery note. It has handed over with the equipment to Aaron from EFG. And also, the clause was written on the back of the invoice by EFG and sent to Aaron after the equipment was delivered. In this scenario, the clause has brought to Aaron before and at the time when the contract was concluded. Therefore, Aaron was bound by the clause.
However, Lord Denning outlines that a reasonable notice should be brought to the attention of the contracting party. In the case of Thornton v Shoe Lane Parking, the offer and acceptance took place at the ticket machine. Lord Denning held that the clause was not incorporated into the contract since it brought to the attention of Thornton after the acceptance has made by him. In order to enforce the clause, the notice has to be drawn to the attention in an unequivocal way. Lord Denning reiterated that the clause is necessarily being printed in red ink with a red hand pointing
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Aaron hired the equipment as a consumer to refurbish his office premise. He was not dealing with this nature of business. Under UCTA, the exclusion clause was void to exclude the liability for personal injury due to negligence.
Minor injuries were caused to Aaron due to negligence maintenance by EFG. Hence, Aaron was not bound by the clause, and he can claim for his personal injury damage. The damages caused to Aaron’s new car cannot be excluded as it was not part of his premises [McCutcheon v David MacBrayne (1964)]. The claim for damages caused to his premises has to rely upon whether the clause was being incorporated in a fair and reasonable way (George Mitchell v Finney Lock Seeds [1983]). The court may consider the bargaining position of both parties. Aaron and EFG were deemed to have equal bargaining power since both of them were in business. However, Aaron may have more bargaining power since he hired the equipment as a consumer, not in the course of business.
To conclude, Aaron may apply the doctrine of fundamental breach, and therefore extinguished the clause (Photo Production Ltd v Securicor Transport Ltd [1980]). Aaron would require more cost to renovate his office, and his business was adversely affected. As a result, EFG may liable for the total damages caused to
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