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Solution:: Q.3 Fern Has Her Own . (Attempt 2019)

Fern contracted with Marry's company to provide work services but failed to deliver. The contract contained exemption of liability clauses, but they were not properly incorporated due to Fern not taking reasonable steps to make Marry aware of them. As a result, the clauses are not enforceable and Marry can claim remedies under the Unfair Contract Terms Act for Fern's failure to supply the contracted services. Additionally, negligence by Fern's employee caused damage to Marry's work site and a fine, so Marry can recover the damages and losses from Fern, as the unreasonable exemption clauses do not apply.

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52 views1 page

Solution:: Q.3 Fern Has Her Own . (Attempt 2019)

Fern contracted with Marry's company to provide work services but failed to deliver. The contract contained exemption of liability clauses, but they were not properly incorporated due to Fern not taking reasonable steps to make Marry aware of them. As a result, the clauses are not enforceable and Marry can claim remedies under the Unfair Contract Terms Act for Fern's failure to supply the contracted services. Additionally, negligence by Fern's employee caused damage to Marry's work site and a fine, so Marry can recover the damages and losses from Fern, as the unreasonable exemption clauses do not apply.

Uploaded by

khan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Q.3 Fern has her own…….

(Attempt 2019)

Solution :

My advice to Marry would be under the laws related to Terms of contract for her rights and
remedies being available at her disposal. The contract between JunkBunk & Marry is a B2B
contract , so the advice would be made under the UCTA 1977. The first issue deals with the
incorporation of the clauses or not, Mary even though after reading the note at the bottom was
unable to excess the website to read them , a case of ( Curtis chemicals ) where it was held that
whilst a party is typically bound by all the contents of a signed written contract, even where they
had not properly read the contract, a clause ought not be deemed legally enforceable where the
drafting party misrepresents the effect of a clause to the other party. Thus, the exemption of
liability clause was not deemed properly incorporated into the contract . Moreover there were no
reasonable steps taken by Fern to incorporate the inclusion clause in the contract as the notice
referred to the website and the website was not available , the cases of ( Thornton VS Shoe
lane ) & ( Olley Vs Marlborough) where it was held that the exclusion clause had not been
successfully incorporated into the contract and no other steps where take to give awareness of the
clauses ,hence they were not incorporated. The remedies for Marry would now be available
under the Sub section 6 of UCTA for contracts for supply of for work and material . Since Fern
was unable to supply the work UCTA prohibits any such exclusion clause of liability and hence
Marry can claim for supply of service.

The second issues deals with the loss incurred to Marry’s work site and causing a fine to be paid
by Marry. Since Rose is not a regular employee she cannot be held liable for this but instead the
liability rests on Fern as she is the party contracted with. Here the remedy for Marry can be seen
under Section 2(2) of UCTA that deals with negligence giving rise to loss or damage to
property or financial losses .But if any clause satisfy the reasonableness under Section 11 of
UCTA it can be effective for which it must fulfill thre criteria that are it must be timing of the
contract,burden of proof and generalization. Here the case of ( Geogre Mitchell Vs Finney ) can
be referred as it was held that any unfair term is to be struck down under UCTA and the clause
which JunkBunk added for not be laibale for any delay or for any damage are the unfair terms.
Moreover, the case of ( CanadaSteamship) is also used here as it held that negligence my not be
reasonable to be discussed where the defendant failed to keep maintain what was he liable for,
similarly Fern was liable to keep the site protected from any damage or loss ,hence the clause
falls short to be reasonable as per SEC 11 of UCTA. So, Marry can recover her damages being
paid for 3000 pounds and can claim for any financial losses to her company if risen by the delay
of project from Fern.

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