Exemption Clause Question

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This is a question concerning on exclusion clause. Exclusion clause is a clause in a contract or term which appears to exclude or restrict a liability or a legal duty which would otherwise arise. Court have generally treated exclusion clauses as a defence to a breach of an obligation.

The issue that arises in the case is whether Jamal can sue Mr Lee and claim for damages.

There are four ways which a clause can be incorporated into a contract by the way of; by giving notice, course of dealing, signature and trade usage or custom. Relating to the problem the clause might be incorporated by notice. Notice of an exclusion clause must be given before or at time of a contract. For an exclusion clause to be effective the party to be bound must have sufficient notice of the clause before or at the time the contract is entered into. Such matter can be seen in the case of Olley v Marlborough Court Ltd.

In the case, the plaintiffs, a husband and wife, paid for lodging at the defendant’s hotel. In the hotel room, there was a notice on the wall stating that the hotel would not be liable for the theft or loss of any items in the room. The wife’s fur coat was stolen from the room when they went out for a stroll. The defendant argued that the notice in the room was incorporated into the contract. The court held that the notice was incorporated into the contract. The court stated that the notice should not come after the formation of contract.

Applying to the problem, the notice by Mr Lee was given to Jamal in a file containing two pages providing details of the tour one day before the departure. In this matter, the notice obey the court’s ruling in Olley v Marlborough as it is given before time of the contract.

Notice in order to be effectively incorporated, the exclusion clause must be in a document where the contractual terms are expected and not merely be found in a receipt. Such matter can be seen in the case of Chapelton v Barry Urban District Council.

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