HA2022 Business Law Acknowledged

HA2022 Business Law Acknowledged

HA2022 Business Law Acknowledged

Question:

1. This group assignment consists of 2 parts. Part A is a case study on Contract law, and Part B is a question involving Civil Liability (the Law of Torts and Negligence). Both questions must be answered.

3. The total word count for the report as well as each part must be clearly written on the cover sheet of the assignment. A paper will not be marked if the word counts are not written on the cover sheet.

Answer:

Introduction

The parties who form a contractual relationship between each other are bound by the terms of the contract. The contractual parties can legally enforce each other to comply with the terms. In case these terms of the contract are breached, then the aggrieved parties have the right to demand compensation from the breaching party. Thus, a liability can be imposed on the contractual parties in case they did not comply with the terms of the contract. However, the parties have the right to exempt themselves from the liability which they face for breaching the contractual terms by relying on the exclusion clause (Gibson, 2017). The parties of a contract can include the exclusion clause into the contract which allows them to eliminate their liability arise in case the contractual terms are breached. The objective of including exclusion clause in a contract by a party is to exclude their liability completely or limit their liability to a fixed sum of money. In the case of companies or businesses, exclusion clauses are often displayed by them on the premises in the way of notice or on printed tickets or receipts (Sekendiz, Ammon & Cannaughton, 2016). Many times parties incorporate these clauses in the contract while entering into a contractual relationship third parties. While determining whether the exclusion clause is valid or not, the court enquiries upon the circumstances in which those terms become a part of the contract.

The general rule of incorporation of an exclusion clause in the contractual terms provides that the term must be brought into the attention of the contracting party while the contract is being formed or before its incorporation. In this context, a relevant judgement was given by the court in the case of Olley v Marlborough Court [1949] 1 KB 532. In this case, a hotel room was booked by the claimant who signed a contract on the reception desk of the hotel. Later when she when into her room, a notice was mentioned behind customers’ hotel room to exclude the liability of the hotel if their belongings are damaged or stolen. It was held by the court that this notice is not valid based on which the liability of the hotel cannot be removed because it was not incorporated while complying with the general rule (Stone, 2013). It was not brought into the attention of the claimant when she signed in the contract at the reception desk or before signing the contract. It is important that reasonable steps are taken by the party to being the exclusion clause in the attention of another party while the contract is formed or before its formation. HA2022 Business Law Acknowledged

In the case exclusion clause is written on a ticket, then the circumstances of the case are evaluated by the court to determine whether it is valid or not. A relevant judgement was given in Causer v Browne [1952] VLR 1 in relation to ticket or receipt containing terms. In this case, the court provided that it is important to determine would a reasonable person assumes that the ticket is a part of the contract or whether it is a mere receipt, acknowledgement of voucher and not a contractual document at all (Graw, 2012). Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 is another relevant case in this context. In this case, the claimant has issued a ticket by putting money in a parking machine while he was entering into the car parking. In small print, it was mentioned on the ticket that there are certain terms and conditions which are binding on customers and they are mentioned inside the parking. The terms stated an exclusion clause which provided that the parking will not be held liable in case the customers were injured. Due to the negligence of the defendant, an injury was suffered by the claimant. A suit was instituted by the claimant, and a question was raised whether the terms were mentioned while the contract was formed between the parties (Monaghan & Monaghan, 2013). The court provided that the claimant gave his acceptance by putting his money in the machine and the ticket was given after the acceptance took place; thus, the exclusion clause was not incorporated in the contract, and the defendant cannot rely on its defence.

Application

In the given case study, Jones was injured when she comes back into the car parking to get her car. A notice was written outside the parking which stated that the owners park their vehicles at their own risk. Jones has issued a ticket by the ticket machine in which it was mentioned that certain terms are applied on the customers which are written inside the parking. The terms provided that the car parking company will not be held liable for any injury suffered by the customer on the premises. As per the general rule of incorporating the exclusion clause discussed in the case of Thornton v Shoe Lane Parking Ltd, the notice written outside the car parking was brought into the attention of Jones before she formed a contract with the car parking based on which it is valid. A contract was formed when Jones gave her acceptance to the machine after which a ticket was issued to acknowledge the payment. The ticket was issued after a contract was constructed between the parties based on which it is not the part of the contract. Thus, the terms written inside the car parking are not enforced on Jones. As discussed in the case of Thornton v Shoe Lane Parking Ltd, since the terms were not a part of the contract, the car parking cannot rely on the exclusion clause to eliminate its liability towards Jones.

The Competition and Consumer Act 2010 (Cth) (CCA) is introduced in order to provide standards relating to trade and commerce in order to prohibit unfair trade practices and promote consumer protection policies. Section 2 of this act provides its object which is to enhance the welfare of Australians through the promotion of competition between corporations and ensuring fair trading by enterprises. Schedule 2 of CCA provides the key provisions which provide the necessary safeguard and protection to customers to ensure that their rights are not breached by unethical trading practices (Gibson, 2017). Along with contractual remedies, statutory protection is available for customers in relation to unconscionable conduct. Section 20 to 22 of the CCA provides the key provisions to protect customers from unconscionable conduct. It is referred to a statement or action which is so unreasonable that it defies good conscience. Section 21 of the Australian Consumer Law (ACL) prohibits corporations from engaging in unconscionable behaviour in connection to supplying of goods and services