Exclusion Clause Eassy Sample Essay

1627 Words Sep 15th, 2009 7 Pages
A.
Introduction
Joe (“J”) is attempting to sue Dazzle Dry Cleaners (“D”) for compensation for the loss occurred due carelessness of D. D will defend itself likely by proving exclusion clause as a part of the terms of its contract with J. In order to advice J it necessary to determine whether the clause has a contractual effect. Secondly it is necessary to determine the terms of the contract and analyse if creation of such clause protects the party relying on it from the consequence of breach. Finally if it’s rendered ineffective by any statue which make D liable for damage, should be discussed.
Contractual Effects of the Contract
In this case main question that arises is whether the exclusion clause is part of terms of contract.
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However to further determine the scope clause it is necessary to closely examine the wording of the terms. The clause states that D takes “exceptional care” of your clothing but will not be liable for any loss or damage to clothing left for cleaning “regardless” of how the loss or damage may be caused. Facts deal with loss and damage of J’s cloths by D’s staff. Statement mentioned in the clause is not clear and absurd so does not the clear the extent of loss. Thus one assumes that the loss occurred was due to the negligence and not while cleaning of the cloths.
As a result the exclusion clause seems to be ineffective to shield D from liability. J can run a strong case by saying D did not take exceptional care of the clothing. D is misrepresenting its functions and ignorance is no defence against the effect of exclusion clause .
In case above facts are used against D it can only save itself under the rule of “non est factum” and must demonstrate that D took every trouble to understand the term of the contract in handling of cloths but failed to do so owing radical incapacity .
Statue Rendered Ineffective
Exclusion clause can only be effective if it does not attempt to negate the effect of the statute. The Unfair Contract Terms Acts 1977 restricts the extent to which liability in the contract can be excluded.

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