Exclusion Clauses In Consumer Law

Question 1

A contract is the voluntary, deliberate, and legally binding agreement between two or more competent parties. Contracts are usually written but may be spoken or implied. A contractual relationship is evidenced by an offer, an acceptance of the offer, consideration and an intention to create legal relations. Within the contracts, exclusion clauses are a general method to administer and allocate the risks involved.

Exclusion clauses indicate which of the responsibilities a party to a contract may avoid. It also indicates what possible losses or costs that party may not cover. However, under the Australian Consumer Law (ACL), not all exclusion clauses can be enforced. They law may even supersede the agreement even if both parties agree

It has to be established that both parties have agreed to the terms of the contract which includes the exclusion clause.

Consumer guarantees that are imposed by the ACL include a guarantee of acceptable quality of goods, a guarantee of due care and skill in supply of services and a guarantee that goods and services will be fit for the purpose stated. In unfair contracts, the ACL enables certain exclusions to be unenforceable.

Exclusion clauses are sometimes found on documents which might not be contracts. They could be found on tickets or receipts in which a party might not have signed. In these cases, the court would decide if a reasonable person will consider the ticket or document as part of a contract and if they know that they should read it.

Exclusion clauses are unfair as it causes inequity among the parties obligations and rights, it does not protect the legitimate interest of the party who acquire a benefit from it and would also cause a disadvantage to the other

As staff of the hotel, they should be aware that the floorboards as well as the radiator were not fit for the usage of its patrons. This was also another breach of duty of care by the Hotel

This could be proved by the neighbourhood principal, case Donoghue v Stevenson (1932). Mrs Donoghue’s friend had bought her a bottle of ginner beer in a cafe. After consuming majority of the drink, Mrs Donoghue had realized that a decomposed snail had emerged from the bottle. She suffered personal injury and claimed against the manufacturer. The court held that the rule that you are to love your neighbour becomes in law, that you should not injure your neighbour. This would include all end users of the product.

Under section 5, a duty is owed to “persons entering on the premises.” All such persons are now owed the same duty which states that Melissa has been owed that duty. This section also states that movable structures, which include belongings, are also owed a duty of care. Section 5(1) sets out the duty of care in which the occupier of premises owes to a person entering on the premises in the circumstances specified in section 4. It provides that the occupier owes a duty to take such care as in all circumstances of the case is reasonable to see that the person entering the premises will not suffer injury or damage by reason of danger falling within the ambit of