a)Is there a contract term regarding the temperature at which the cheese must be refrigerated? [14 marks]
Yes, she took reasonable steps to express to both the operator and the truck driver before commission of the contract that ‘it was important that the cheese be chilled to at least one degree.’ 1 This in it is unambiguous and in its natural and ordinary meaning requires that the drive have the cheese chilled at one degree.
1New Ferry Co v Robertson (1906) 4 CLR 379
b)Is the exclusion clause effectively incorporated into the contract? [5 marks]
The exclusion clause that was in the standard contract. This contract was utilised on several dealings with Penny in which she had signed. Therefore, even if she hadn’t signed the document prior to the execution of the contract, the previous exclusion clause that was present in all the standard contract would be incorporated in the contract.
c)If the exclusion clause were incorporated in the contract, would it apply to a claim in negligence? (You may assume the carriers acted negligently.) [5 marks]
Yes, The exclusion clause doesn’t specificly meantion negligence, however the exclusion clause may be wide enough to exclude liability for negligence as it says that the company isn’t liable for ‘deterioration … of goods held in [the companies] care, custody or control, or any consequential loss arising therefrom howsoever caused.’
a)Is Queens liable in contract for the loss of Kenny’s car?
The general rule for tickets is that the recipient of the ticket is bound by the terms listed on the ticket whether or not the recipient has read the ticket or not. However, an English case Parker v. The South Eastern Railway Co where the Lord justice Mellish with the endorseme...
... middle of paper ...
...igns where displayed so that it would be easy to see. Furthermore, a reference to the relevant terms on the back of the ticket noted on the front.
d) Assume, for the purposes of this question, that the exclusion of liability clause is incorporated into the contract. Would this clause exclude liability for negligence? (You may assume the conduct of attendants is negligent).
No, A Canadain case set out that negligence is not excluded unless the exclusion clauses mention negligence explicitly. If negligence is not mentioned, then liability for negligence is excluded only if the words used in the exclusion clause are wide enough to exclude liability for negligence. If there is any ambiguity, then the contra proferentem rule applies. If a claim on another basis can be made other than that of negligence, then it covers that basis instead. Canada SS Lines Ltd v. The King
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