Is the exclusion clause enforceable?
A disclaimer is a statement that one of the parties will not be in breach despite failing to perform one or more of their contractual obligations. Whether a disclaimer is enforceable depends on;
1. Is the disclaimer part of the contract: (1) is it expressly set out in a written contract that has been signed by the parties? (2) It is expressly brought to the attention of the party by reasonable notice given before the contract was formed. (3) It is implied into the contract as a result of prior dealings between the parties (James, N 2014, p309).
2. How will the disclaimer be interpreted? Any ambiguity in the interpretation of the clause goes against the party seeking to enforce the …show more content…
When she left, she told me that she was going to another café to get a job. However, there was an express clause on the contract which Donna agreed that she won’t work at any other café around Doctor Who café after her leaving 24 months. Actually, she remembered reading the clause and signed her name on the contract. The restraint of trade was reasonable and intended to protect the trade secrets in order to avoid being learnt by the rival café shops. For example, Forster & Sons Ltd (FSL) is a business that made glass and glass bottles and Suggett is one of the glassmakers. There is a term in his contract claimed that he could not work for any glass or glass bottles manufacturing in the UK for 5 years after he leaving FSL. The court decided that the restraint of trade was reasonable and tried to protect FSL’s private manufacturing to prevent the competitors discovered that (Forster & Sons Ltd v Suggett (1918) 35 TLR …show more content…
These seats will stay there endlessly, and will not be unbolted and move them. If we want to move them, we need to do a lot of work. The intention of this behaviour is to collocate with the long tables. For the building or land, it is difficult to remove the old cinema row seats from the land or building because it would involve lots of work. However, this behaviour would not cause the substantial damage when removal the seats. Thus, the cinema seats are a fitting (chattel). For example, there was a theatre which was sold. They cannot decide the seats, the switchboard and the projector which were fixtures. They need to know which fixtures that passes to the purchaser were and which fittings that left the property of the seller. As the result, the court decided that the switchboard and the projector were fixtures because they were permanently and securely attached to the building. Nevertheless, they thought the seats were bolted to the floor which used by other purposes, therefore, the chairs were fittings (Australian Provincial Assurance Co Ltd v Coroneo (1938) 30 SR (NSW) 700). This exampel is similar with the case