EXEMPTION CLAUSES ( contract ) Free Essay Example, 1500 words

It is may be argued that the purchase made should be deemed covered by the limiting clause on the basis of the argument that Thomas would have not given Smith Co. the same term as what have been done in previous purchases, in the absence of evidence to the contrary. Is there really incorporation made? Is the exclusion clause actually incorporated into the contract? In order to be effective the clause must actually be part of the contract. The limitation clause is part of standard contract but there was no signing done according to the case facts and therefore the doctrine of ‘non est factum’ could not apply. Therefore Smith Co. will invoke that there was no written contract to make the exclusion effective It cannot be assumed that Smith would sign after the standard clause after the verbal agreement over the phone since the case facts did not tell so. Smith may use the case of Chapelton -v- Barry UDC (1940) to support his argument. In said case Mr. We will write a custom essay sample on EXEMPTION CLAUSES ( contract ) or any topic specifically for you Only $17.96 $11.86/pageorder now Chapelton visited the seaside resort of Barry and hired a deckchair and he paid over his money and was given a receipt for it. He got himself injured when he sat on deckchair after the latter collapsed. He sued the Local Authority (who hired the deckchairs) for damages. Defendant relied upon a clause printed on the receipt which excluded any liability for damage sustained as a result of hiring the deckchair but they lost because the receipt was issued after the contract to hire had been concluded. It did not, therefore, form part of it. Smith Company could argue that the clause was not part of the contract and should the company be forced to sign after the verbal agreement, it could argue that the clause should have been brought to the attention of the hirer before the contract was concluded. However, this may be hardly believable by the court because of the previous purchases made from Thomas Co. Since the contract is essentially verbal, the questi on is could the limiting clause in the past transaction was in the form of a notice for the subsequent contracts so that the limiting clause be incorporated where the Smith Co. had actual or constructive notice of the clause before or at the time the contract was made? Could we say there was actual notice of the limiting clause? Case facts say: â€Å"However, this particular purchase by Smith Co was agreed over the telephone and Smith Co was never asked to sign the standard terms. † It would seem there was no actual notice, hence the next question is: Was there a constructive notice