There are three problems that John has come across on his trip to Bildit Stores. The first problem is that John parked his car in the stores car park only to find on his return that the "park here at your own risk" sign had fallen and damaged his car. The next is that he bought a drill from another customer instead of in the store and it set fire when first used which resulted in losing valuable information on his PC and also damaging his ceiling at the cost of over £1000. The final problem is that John bought 10 boxes of sky blue tiles and had 20 more boxes ordered for delivery the next day, however, two weeks later only 15 boxes were delivered and only 5 of those were sky blue tiles and the rest were midnight blue.
The first thing to consider with regards to the car damage is whether or not there was a contract between John and Bildit Stores. Young gives the definition of a contract as an agreement (usually between two persons) giving rise to obligations on part of both persons which are enforced or recognised by law. (Young, 1997: 1). By this definition it shows there was a contract because John parked his car and paid the parking charge which meant that he entered into the contract and agreed to the terms willingly. This means therefore John is bound by this contract however, the exemption clause park at own risk' will only be effective if it was incorporated into the contract with reasonable notice and before the contract was made and if it was, John will accept liability for damage to his property.
Exemption clauses are where one party inserts into the contract a term excluding or limiting his liability for any breach of contract by him (Young, 1997: 246). It also has to be incorporated into the contract otherwise it will not form part of the agreement and cannot bind them. It can be incorporated in the contract by signature, by notice or by course of dealing (Trietel, 1999: 197).
The store in John's case had inserted their exemption clause in the form of a notice displayed in the car park "park here at your own risk we do not accept liability to damage of property". When an exemption clause is given in a notice, in order for it to be incorporated there needs to be reasonable notice of its existence given to the party.
In Thornton v. Shoe Lane Parking Ltd (1971) the consumer parked in the defendant's automatic car-park where the machine gave a ticket as they drove in. The ticket which the stated that the terms and conditions were shown inside the premises. One of the conditions was excluding liability to damage to property and injury howsoever caused. The customer was injured, partly due to defendant's negligence. Lord Denning held the exempting condition ineffective because the defendants had not sufficiently drawn the customer's attention to it (Leder et al, 1996: 52). This case law illustrates how Bildit Store was not like the Shoe Lane Parking Ltd and did give reasonable notice by putting up the sign in the car-park for all to see therefore this exemption clause would be upheld in court. There is another point to consider as to whether the exclusion clause is incorporated which is that steps needs to be taken to bring it to attention before the contract is made.
This was shown in the case of Olley v. Marlborough Court (1949) where the consumer had her furs stolen from the hotel bedroom which was locked. There was a sign on one of the bedroom walls which excluded the hotel of responsibility for any articles lost or stolen. It was held that the contract concluded before the consumer was shown to the room and therefore the notice was not incorporated into the contract (Trietel, 1999: 200). With this in mind John's contract with Bildit Stores would have concluded when he paid the parking charge therefore as John parked his car under the exemption clause sign, it is reasonable to say that he would have seen it before he bought a parking ticket, consequently John agreed to that clause.
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