The Business Law Assignment

The Business Law Assignment

In this assignment, a case study is given and students are required to use appropriate case law and statutory materials to analysis the case.

The purpose of this essay is to solve Samantha's problem by applying suitable case law knowledge. Firstly, the rules regarding the incorporation of an exclusion clause by notice and the limitations to its use will be described. Secondly, the rules that establish the tort of negligence will be demonstrated. Thirdly, the potential liability of Ravvi for the injuries suffered by Samantha will be identified. Fourthly, how Kara may be held vicarious liability for the injuries will be explained. Fifthly, the remedies that are available for injuries sustained due to a negligent act will be clarified. Finally, a conclusion will be drawn.

An exclusion clause is a term for one party in a contract to keep away from responsibility for something they would otherwise have to be liable for and to restrict the rights of the parties to the contract (Wikipedia, n.d.).

By notice means a contract has not been definitely agreed by both parties; instead, the contract is posted somewhere obviously and the party can easily see it (Warner, D., 2009).

In general, there are two rules in order to determine whether an exclusion clause is incorporated correctly. First, the rule must be incorporated when Contract was made. Olley v. Marlborough Court Limited (1948); Thornton v. Shoe Lane Parking Ltd (1970) Second, reasonable notification needs to be decided. It means whether the exclusion clause brought to the party's attention in a manner that the party would expect. Chapelton v. Barry Urban District Council (1940) (Warner, D., 2009)

Nevertheless, there are certain limitations of exclusion clauses. Firstly, The Unfair Contract Terms Act 1977 mentions that some terms in contracts such as exclusion clauses may be unfair and can be assumed invalid by the court. The consideration to determine whether the term is unfair is reasonableness. For instance, the court will look at the relative strength of the parties' bargaining position, whether the customer is induced to agree to the term or whether the customer knew or reasonably should have known of this term (Warner, D., 2009).

Despite The Unfair Contract Terms Act 1977, Automatically Invalid Clauses can be another limitation of exclusion clause. Certain exclusion clauses are automatically considered invalid under the Act. For example, it is void to try to exclude responsibility for death or personal injury according to negligence (Warner, D., 2009).

In this case, there is an exclusion clause and it is Kara's two-sentence sign on the wall. Besides, Samantha's attention is brought to the notice and she has read the sign behind the counter clearly.

When Samantha walks into the salon, she reads the exclusion clause and therefore the exclusion clause is incorporated into the contract at the time Samantha notices the sign. Moreover, the sign is put behind the counter and it is reasonable for Samantha to find the notice. Thus, there is a reasonable notification in the case.

As the notice mention, the management in the salon gives no liability for customers' loss and damage of possessions. The salon also takes no responsibility of customers' injuries sustained through any treatments or services provided. The first part of the exclusion clause is reasonable as the customers themselves should have the responsibility to take care their possessions. However, the second part of the exclusion clause is invalid. The salon tries to exclude the liability for customers' injuries and the exclusion clause is considered as an automatically invalid clause. Therefore, it should be the salon's fault and the company should take the responsibility to this case.

Negligence is a legal concept in the common law legal systems. Generally, it is used to achieve compensation for injuries (not accidents) (Wikipedia, n.d.). Negligence is one kind of tort and it is a civil wrong. Furthermore, negligence is the breach of a duty of care causing damages (Warner, D., 2009).

To discuss negligence, three parts should be mentioned. They are duty of care, breach and damages respectively.

Duty of care means a legal responsibility that one person has to another person because of their relationship (Warner, D., 2009). In general, there are three tests for duty of care. Firstly, Proximity means what kind of relationship the parties have and how close they are. Donoghue v. Stevenson, Caparo v. Dickman Secondly, forseeability means whether it is foreseeable that the defendant's would have a duty of care in this situation. Donoghue v. Stevenson, Caparo v. Dickman Thirdly, reasonableness questions if it is reasonable to expect the defendant to have a duty of care in the situation. Donoghue v. Stevenson,