Disclaimers are exclusions, limitations or waiver clauses that are intended to prevent or limit the liability of one of the parties involved. Examples include clauses such as consequential damages clauses, no-damage-for-delay clauses, and pay-when-paid clauses (Samuels & Sanders, 2015). Disclaimers are not always written in the contracts. They may be placed in noticeable places or contained in letters. They could be a note or a paragraph in a geotechnical report or at the top of drawings and specifications. Disclaimers are effective tools for shifting risk. They, however, must be brought to the attention of the party whom they are intended. They must also be very carefully drafted so as to be enforceable (Samuels & Sanders, 2015). Disclaimers …show more content…
For example, when an individual signs a contract and it is contained within it or even by being in the presence of a property with the dangerous environment even after seeing the warning signs. The best result of a disclaimer is that it releases one of the individuals involved from part or complete legal liability. If such a document is signed, it could regulate the ability of a party to recover damages in court. Facts Mr. Zhu is a software engineer with a stock portfolio of $250,000. He has considerable knowledge in the investment field. Mr. Zhu trades stock using a program called NetTrader, which is run by Merrill Lynch HSBC through the internet with commissions payable to Merrill Lynch HSBC. Mr. Zhu used NetTrader to sell 4000 shares from his RRSP account at the noted time of 14:47 on May 23, 2001, and then proceeded to cancel the trade immediately at 14:47 on May 23, 2001. He received a notification that confirmed that 200 of the shares were sold at the time of the cancellation but the cancellation of the remaining 3800 was …show more content…
Disclaimers are usually used as a way to qualify representations about goods and services. Disclaimers are sometimes needed to make sure that information is accurate and also avoid unwarranted reliance on a statement. They are at times used to limit a representation (Scassa & Deturbide, 2004). Disclaimers, therefore, need to be accessible and explicit so as to be useful in meeting the requirements of the representation. The Competition Bureau gives some practical advice on how to avoid conflict with the Competition Act when using online disclaimers. The Bureau states that a disclaimer an only qualify as representation, it cannot remedy or pull back a false or misleading representation. For a disclaimer to be adequate it has to be strategically placed and accessible (Scassa & Deturbide,
Under which theory or theories of product liability can Kolchek sue to recover for Litisha’s injuries? Could Kolchek sue Porter or Great Lakes?
However prior to the modern understanding of Consumer Rights there was a understanding of Caveat Emptor – Buyer Beware –this has been a fundamental premise of consumer wellbeing prior to World War ‖ , relation to transactions, principle that the buyer purchases at his own risk in the absence of an express warranty in the contract . This common law rule assumes that buyers and sellers are in an equal bargaining position. However there has been evident change in consumer rights which have contributed to the precedence of using Caveat Emptor is no longer acceptable, apparent in the case ACCC v Hewlett Packard Australia (HP), illustrated that no longer can a company ...
Legal Studies Essay Joey Agerholm Exclusion clauses determine the liability of something that might go wrong within a contract. They are used by sellers as an attempt to avoid or limit their liability. The seller has the advantage over the buyer who must agree to the clauses to purchase the product/service. Because of the buyers disadvantage the court takes such cases, involving exclusion clauses, very seriously, and the content of the clauses are carefully interpreted. With the current Trade Practises Act and the Fair Trading Act the standard form of business contract is adequate and effective in protecting the buyer. The Trade Practise Act is the most effective legislation for the protection of the consumer. It implies to the following situations:- - “A promise by the seller that the buyer will become the owner” If a car dealer breaks a promise or part of a contract, for example that he has the right to sell a car, and the car is stolen then although the buyer will have to give the car back he/she will get her money back. - “ A promise by the seller that goods will fit the description supplied by the seller” In this case the buyer is protected if the seller makes a promise, which is a condition of the contract, describing the product, and when the buyer receives the product, it does not match the description. - “ A promise where the seller is made aware of the purpose for which the goods are required, that the goods will be reasonably fit for that purpose” This condition is implied when the buyer makes the purpose of the goods needed known to the seller, and the buyer then relies on the seller’s judgement in providing the correct product. For example it would not be reasonable if you made the seller aware that you wished to purchase something suitable for mowing the average suburban backyard and you were sold a tractor. - “A Promise that goods are of merchantable quality” According to this act a good is considered to be merchantable if they are suitable for the prospect for which other similar goods are sold, involving the description applied to them, the price and any other relevant information. This act does however does not protect the consumer if he/she has examined the product and missed any defects that should have been seen or if the seller made him/her aware of the defect prior to the purchase of the product.
These can be written, spoken, or even expressed by any of the parties. Contract Law is a fundamental aspect of legal systems, governing agreements between parties. It goes along with contracts
What is the good? How do we know what the good is? How do we attain the good? What are the major obstacles in attaining the good? These questions have a great practical importance for individual as well as collective life. However, disagreements emerge when it comes to answering these questions. Throughout history, philosophers, theologians and other thinkers have tried to resolve these disagreements by providing their own and ‘new’ understanding of what is Good? In this essay, I will explain how Aristotle and Augustine have understood this ideal and how they have answered these questions. In the first two parts of the essay I will look into the conceptual framework of these two philosophers and try to explain how they have answered the above mentioned questions. In the last part, I will try to answer this question: which of the two philosophers I agree with and why?
It is commonly accepted that an estoppel is a legal doctrine which prevents a person from negating or claiming a fact due to that person’s prior conduct. The doctrine of estoppel has been applied for years and different forms of estoppel have been established. For the purpose of this essay, I will predominantly concentrate on promissory estoppel in relation to the law of contracts. This essay will be approached by discussing the issues of pre-contractual liability, consideration, reliance and the doctrine as a cause of action or defence and a slight comparison of the standpoints that various jurisdictions hold towards these issues. These arguments would conclude the uncertainty of the doctrine and thus, the difficulty and issues that would be faced with the codification of the estoppel.
Recognizing what the law stipulates is extremely important. It protects an individual from suffering injustice committed by others consciously or unknowingly. In business dealing, contract law is commonly cited as a guidance on how the deal will be sealed. This law is so fundamental that every business person must be recognize the elements of this law. An individual can be tricked into entering a contract or be lied that they have a contract and in the process end up losing millions. To this end, both sellers and buyers should consider seeking legal advice when met with a new situation. With time, people have developed new ways of tricking people into signing a contract. Having signed this contract, an individual may be
...clauses must pass the test for reasonableness. In Smith v Eric Bush [1989] (1990 AC 831), a surveyor sought to exclude liability for negligent misstatement when completing mortgage valuations. The disclaimer excluded liability to any third party relying on their advice. it was decided that there was no contractual agreement between the plaintiff and defendant and it did not prevent any duty of care arising. It was subject to s2(2) of UCTA and was found to be unreasonable. As this case is so similar to that of Brad and Chardonnay, one could only assume that the same verdict would be made towards Briks & Mortimer Chartered Surveyors’ exclusion clause.
S.6(3) states that as against a person dealing otherwise than as consumer liability for breach of the obligations arising from ss.13, 14 or 15 of the Sale of Goods Act 1979 can be excluded or restricted by reference to a contract term, but only in so far as the term satisfies the requirement of reasonableness.
As a consequence of the separate legal entity and limited liability doctrines within the UK’s unitary based system, company law had to develop responses to the ‘agency costs’ that arose. The central response is directors’ duties; these are owed by the directors to the company and operate as a counterbalance to the vast scope of powers given to the board. The benefit of the unitary board system is reflected in the efficiency gains it brings, however the disadvantage is clear, the directors may act to further their own interests to the detriment of the company. It is evident within executive remuneration that directors are placed in a stark conflict of interest position in that they may disproportionately reward themselves. The counterbalance to this concern is S175 Companies Act 2006 (CA 2006) this acts to prevent certain conflicts arising and punishes directors who find themselves in this position. Furthermore, there are specific provisions within the CA 2006 that empower third parties such as shareholders to influence directors’ remuneration.
The exclusion clause is an important device for allocating the risks between the contractual parties. However, the exclusion clauses could mostly be found in written contracts, especially standard form of contracts. Standard form contracts with consumers are often contained in some printed ticket, or delivery note, or receipt, or similar document. In practice, it is very common that if a person wants the product, he may have no alternative but to accept the terms drawn up by the other party even though such terms are disadvantage to him, or he may simply accept it regardless the possible unfavorable position because he does not trouble to read a long list of terms and conditions. Therefore, contracts are regularly signed, tickets are simply accepted, or a tick-box on a website is clicked, commonly between large companies and individual consumers.
Explain why it is important to have an intention to create legal relations when making a contract and why is consideration of the parties to the agreement necessary-:
Exclusion clauses are clauses usually written down that say that one party to the contract will not be responsible for certain happenings. For example, if you join a gym, it is common for the contract to say that the gym owner will not be responsible if you are injured while exercising. If you arrange to park your car in a public carpark for a fee, the owner will often seek to include in the contract a provision that they will not be responsible for damage to your vehicle or theft of goods from it, while it is in the carpark.
Implied terms – they are not expressed but they are adopted as “obvious” an individual must comply with (e.g) if buying a product and it is not in a good taste the consumer has the right to return it to the owner for exchange or refund.
 At point of sale consumer are protected by law concerning some aspects of their purchases despite principal of caveat emptor