Yiming Show Organizers The Success Injuries Essay

Question:

Discuss About The Yiming Show Organizers The Success Injuries?

Answer:

Introducation

When any contract is made by the parties then it is very necessary that the main contract elements that are offer, acceptance, capacity, legal intention and consideration must be comply with. When a valid contract is made then the terms of the contract are binding in nature and the parties must comply with the same.[1]

One of the most important terms that are normally found in the contract is exclusion clauses.

Exclusion clause is a term which is a integral portion of a contract with the consent of both the parties. The main aim of the exclusion clause is to exclude or limit the liability of one of the parties to the contract on the occurrence of an event that it is mortally decided by the parties resulting liabilities of one of the party to the contract and is rightly held in British Crane Hire v Ipswich Plant Hire[2]. However, because of the presence of the limitation/exclusion term such liability is limited or excluded at the permission of other party.[3]

But, if any exclusion clause is made part of the contract without bringing the same in the knowledge of the other party then the clause has no validity. It is compulsory on the party who is incorporating the clause to bring the same in the knowledge of the other party with reasonable means in order to make the contract binding upon the parties. It is necessary to bring the notice of the clause prior to the establishment of the contract and is rightly held in Olley v Marlborough Court[4].[5]

An exclusion clause is incorporated in a contractual document by few methods. Such as:[6]

When the contract are signed by the parties – When the parties enter into a contractual relationship by signing the contract and such contract contains an exclusion clause, then, such exclusion clause is binding upon the parties regardless of the fact whether such clause is read by the parties or not. In L'Estrange v Graucob[7], a sales agreement was signed by the parties which contain an exclusion clause. The plaintiff did not read the clause. However, the clause was held to be valid in law.

However, when the contract is entered into by the parties and the document is signed by the parties, but the contract is based on misrepresentation, then, if any exclusion clause is made part of the contract, then, such clause is held to be invalid regardless of the fact that the contract is signed by the parties. In Curtis v Chemical Cleaning Co[8] the clause if incorporated by misrepresenting the aggrieved party. The clause was held to be ineffective in nature.

In Parker v South Eastern Railway[9], it was held by the court that if an aggrieved party receives a document wherein there are some terms which are printed, then, if such terms can be read by the aggrieved and he can notice of such terms then the terms , inclusive of exclusion clause, is binding upon the aggrieved party.

But, in Chappleton v Barry UDC[10], two tickets were purchased by the plaintiff which hold the exclusion/ limitation clause. The clause is not read by the plaintiff. It was held by the court that since the ticket was mere a receipt thus the exclusion clause is ineffective in nature and is not binding upon the parties

When the contract that is entered by the parties is not signed by the parties then it is obligatory upon the relying party to make reasonable efforts to bring the exclusion clause within the knowledge of the aggrieved party in order to make the clause effective and valid. In Parker v SE Railway Co[11] it was held that the obligation of reasonableness is present only when the document so signed is contractual in nature. If the document is in the form of receipt or then there is no obligation to make reasonable efforts.

The relying party has an obligation to gave reasonable notice and not any kind of sufficient notice and is held in Thompson v LMS Railway[12].

When the parties were in previous dealings – When the parties are in consistent course of dealing then there is no obligation upon the relying party to bring the exclusion clause within the notice of the aggrieved party by reasonable means and is rightly established in McCutcheon v MacBrayne[13]and Hollier v Rambler Motors[14].

Thus, these are the basic rules that govern an exclusion clause and are now applied to the facts of the case.

Application of law

The Mid Winter Show organizes a temporary ride. Yiming and Fatima were attendees of the Show and Yiming had recognized the ride as one he had been on the year before and at other regional shows.

She urged Fatima to go on with him. They both purchased tickets for the ride but the attendant did not notify them that there are few terms on how the ride must be dealt with was part of the ticket, however, he did get both of them to sign the ticket.

The ticket contains an exclusion clause "Patrons on the chair-o-lift enter at their own risk. The owners and operators of the chair-o-lift accept no responsibility for injuries received by patrons howsoever caused".

It is submitted that the exclusion clause that is printed on the ticket. However, both Yiming and Fatima singed the ticket. Now as oer L'Estrange v Graucob [1934], since the ticket is signed by them which contains an exclusion clause, thus, the clause is binding even when the same is not read by them.

Also, as per Parker v South Eastern Railway , since both Yiming and Fatima saw writing and a number on the ticket, thus, the terms can be read by them. They both can notice the terms and thus the terms on the clause is binding upon them.

Further, Yiming had recognized the ride as one he had been on the year before and at other regional shows. Thus, as per McCutcheon v MacBrayne she is aware that the clause is in regular course of dealing of Mid Winter Show.

Thus, from every aspect the terms on the ticket is binding upon Yiming and Fatima.

On the central pylon, there was a notice with the terms and conditions of travelling on the ride and contains an exclusion clause which was same as printed on the ticket. However, the notice was faded and partly obscured by some advertising posters and graffiti.

It is submitted that there is no signed document in respect of the exclusion clause mention don the central pylon. Thus, as per Olley v Marlborough Court, it is obligatory on the organizers to bring the notice within the knowledge of Yiming and Fatima by reasonable means. However, no such attempt is made by the organizers nor the notice was readable.

Thus, the exclusion clause that is made part of the notice board is not valid and is not enforceable in law.

Conclusion

Both Yiming and Fatima, cannot sue the organizers of the show as the exclusion clause that was part of ticket is binding upon them since the ticket is signed by them and they also noticed the exclusion clause that was made part of the ticket. But, the exclusion clause that was mentioned on the notice board is not binding as reasonable efforts are not by the organizer to bring the same in the knowledge of Yiming and Fatima.

Reference List

Adams M (1997) Australian Essential Management Law, Routledge,.

Gillies, P (1988) Concise Contract Law. Federation Press.

Rainey S (2013) The Law of Tug and Tow and Offshore Contracts, CRC Press.

British Crane Hire v Ipswich Plant Hire [1974].

Chappleton v Barry UDC [1940].

Curtis v Chemical Cleaning Co [1951].

Hollier v Rambler Motors [1972] .

L'Estrange v Graucob [1934].

McCutcheon v MacBrayne [1964]

Olley v Marlborough Court [1949].

Parker v South Eastern Railway (1877).

Thompson v LMS Railway [1930].

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