Exclusion Clause

January 19, 2017 Communication

This is a problem related to exclusion clause. The issue is whether the exclusion clauses in the contract for the car park and the video? equipment? shop,? with Phoebe and Dessy respectively,? are legally binding.

Exclusion clause is only enforced by the court if it has been communicated form one contracting party to another when the contract is formed. In the other words, the exclusion clause is under the agreement between both parties in contract. The party relying on the exclusion clause has the responsibility to ensure the proper communication.

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Phoebe??™s case
In Phoebe??™s case, the exclusion clause protecting ???Parking in Melbourne??™ Ltd was mentioned on the sign at the car park entrance and printed on the back of the ticket as a statement. However, it is not sufficient to determine if the exclusion clause is legally binding, because the question does not state whether Phoebe has the knowledge of the clause when or before the contract with ???Parking in Melbourne??™ Ltd is formed.

Scenario 1:
If Phoebe had used the parking service provided by ???Parking in Melbourne??™ Ltd before, according to Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, through the previous course of dealing, Phoebe had implicitly agree to the exclusion clause and therefore ???Parking in Melbourne??™ Ltd is excluded form the liability of the damage and loss of Phoebe??™s car and navigator.

Scenario 2:
On the contrary, if this is the first time for Phoebe to use the service, it is conscionable that she did not notice or aware of the exclusion clause on the sign and the back of ticket and assume it is part of the contract, as in Causer v Browne [1952] VLR 1. Provided that the staff did not actively communicate the clause to Phoebe when the contract is formed. Thus, the exclusion clause, in this situation, is not binding and Phoebe is entitled to claim damages from ???Parking in Melbourne??™ Ltd.

Dessy??™s case
In Dessy??™s case, as Bob only told Dessy that the document is used for recording equipment dropped off and collecting back the item, no matter if Dessy did not read the document carefully which she supposed to, as in L??™Estrange v F Graucob Ltd [1934] 2 KB 394, Bob did not fulfill his responsibility to precisely communicate the exclusion clause to Dessy. Therefore, according to Curtis v Chemical Cleaning Co [1951] 1 KB 805 ,the exclusion clause is not legally binding due to misrepresentation. It is inevitably that Ted??™s Video Equipment Shop or Bob is responsible for the malfunction of Dessy??™s video camera with Phoebe as witness. As a result, Dessy is entitled to seek for compensation for the damage of her video camera.

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