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Offer and Acceptance - Past Paper
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| Words: 848 | Submitted: 21-Apr-2011
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DescriptionAn attempt to answer past paper
Penelope owns a washing machine which has needed regular repair over the past two years. On the latest occasion on which it breaks down, she phones David who has mended the machine on previous occasions. David agrees to come out on the basis of an “all-inclusive” charge of $150.00 Barbados dollars.
When he repaired the machine, he asks Penelope to sign a form saying that all work had been completed satisfactorily; that David will replace any parts break down within three months: but that otherwise David accepts no liability for loss or damage to cause by his work. Penelope signed the form.
The next time that Penelope used the washing machine, it flooded causing $5000.00 worth of damage to Penelope’s rugs. When Penelope tries to switch it off, he receives a severe electric shock from the casing, which severely burnt his arm.
Advise Penelope. Cite relevant cases to illustrate your answer.
Taking the facts in the case as read. The matter at hand deals with the issue of exemption / exclusion clause. Whereby an exemption clause is one that attempts to either limit or exclude entirely one party’s liability to the other in the event of breach of contract. (To discourage the person whose property or who incurred damages on making a claim)
The issues we need to examine are:
Whether clause was incorporated into contract
Whether clause covers the damages that occurred; and whether we should look at citing the control for an unreasonable exclusion clause (Consumer Protection Act Cap.326.)
Within common law, on signing the form Penelope entered into a contract with David and is therefore bound by the terms in the contract; so the first issue to examine is whether the clause was incorporated into the contract. There was a purported exemption clause on the form which you signed which stated “that David will replace any parts break down within three months: but that otherwise David accepts no liability for loss or damage to cause by his work” whether the clause was read Penelope is still bound to the terms within the clause. As illustrated in the case L’Estrange v Graucob (1934), where the plaintiff purchased a vendor machine from the defendant and signed the sales agreement without reading. One of the terms in the agreement was that ‘any express or implied condition, statement or warranty…is hereby excluded’. The machine did not work properly, but when L’Estrange sued the defendant in breach of contract, the court held that it was not maintainable as she was bound by the terms and condition.
Seeing that there was an incorporated clause in the contract, we examine whether the clause covers the damages that occurred. The contra proferentem rule requires that any uncertainties or ambiguities in ...
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