Exclusion Clause And Vicarious Liability †Myassignmenthelp.Com

Question: Discuss About The Exclusion Clause And Vicarious Liability? Answer: Introducation The main issue of the case is to decide the real position of the Qantas Airlines and whether there is any breach of contract present in between the Airbus Corporation Limited or not. The provision of the contract law will be applicable here. In the case of a contract, the contracting parties are bound by law to abide by the provision of law and the conditions of the agreement. It is important to maintain the rules of the contract properly to secure the interest of the contracting parties. However, the rule is that all the conditions need to be stated clearly in the contract and if any of the rules are stated in such a manner that cannot be seen properly, he will get certain benefit regarding the same. One of such benefit is the Exclusion clause. It has also been stated under the law that the law of contract is based on the offer and acceptance. In this case also the rule regarding the exclusion clause will be imposed on the party. The law of contract is not possible without offer and acceptance. There are certain provisions mentioned under the law that until the offer is accepted by the other party there will be no contract exist. There are certain provisions mentioned under the law of acceptance. It is a fact that acceptance must be depending on free consent and there should not be any chance to coerce the person of Crave out the acceptance illegally. It has been stated under the case law of Donoghue vs Stevenson that in case of any offer there should be acceptance for each and once the offer is accepted the offer has to pay attention to the acceptor. It has been mentioned under the case law of Riches v Hogbrn[1] it has been held that a party who accept the offer made by the offer should accept the same in such a way or manner that is created by the offer or that is encrypted in the mind of the offeror. In Wakeling v Ripley[2], it was held that a contract could be legally binding only use there is a valid offer and acceptance to the offer. In the case of Grauco[3] it has been held that once the person accept all the requirements made by the offer, he shall be restricted by Court to claim further. The reason behind the same is that it is presumed when a person give his consent over such issue, it has derived by way of free consent. It is stated under the law that when an offer has been made and the parties who accept the same could not able to add certain extra benefits under the conditions of the offer. If there is certain proof regarding the method that the acceptor has added extra provisions under the contractual rules and if the offeror could not able to understand its meaning and without the understanding he signed the contract then the transaction would not be considered as a valid acceptance or a valid contract. In Chapelton v Bary Urban District Council[4], it was held that there are certain limitation regarding the contractual liability and there is a profession mentioned under the contract law regarding the exclusion clause. There are certain provisions mentioned under the contract law to determine the legality of the legal effect of the contract. It has been mentioned under the act that after the offer is made a person who accepts the same, shall be made on the way where there is no classes of coercion and undue influence or fraudulent way. It has also been stated that if the additional term is not known to the parties to the contract or any of the parties to the contract the towns will be excluded from the contractual agreement. The main objective of the exclusion Clause is that is in a contractual agreement there is certain provisions regarding the contract law that are not expected to be there under the control agreement. It is to be understand that if any of the position has made or included or added in the conditions of the contractual agreement it is the duty of the person who has decided search terms brought into the mind of the other party. Is the same principle has not been followed up properly the validity of the contract should not be possible. The relevant case law regarding the exclusion clause can be Causer v Browne[5]. In Interphoto Picture Library v StillettoVisual Progrm[6], it has been held that after the contractual agreements and the terms of such agreement has been made no other conditions should be added with the agreement. If such terms are added it is said violate the principles of contractual law and hills make the contract void. The level of the contract law is civil in nature and therefore if any breach has been made regarding the contract act or the conditions of the contractual agreement, the aggrieved party has every right to claim damages from the liable party. In addition to the fact of claiming damage the address party me also sick from the earliest party such compensation then they had to face regarding the addition of the provision. Application In this present Case it is to be seen whether there is a valid offer and acceptance to the matter and whether there is any extra positions added under the contractual agreement or not. It is stated under the fact of the case that one Qantas made a contracting agreement for the period of 545 days. The contract is made under this case for the delivery of certain goods. All the necessary facts of the requirements made clear by the offer and the acceptor had agreed to provide all the requirements and therefore and acceptance has been made regarding the same. It is a common fact that once an offer is getting accepted the contract is formed as legally. It is a fact that after the acceptance of the offer made by the Qantas Airlines, the Airbus company has send a large number of documents and an additional conditions were made by the Airbus company. The Airbus Company has failed to make the first party know about the additional statements and therefore the case extract the profession of the exclusion clause of the contractual law. The requirements made by the Qantas Airlines that the Airbus company will provide them a high quality video entertainment system that must be hold 36 channels and there should be engine of good quality[7]. How was Earth after the contractual sub subject has been prepared and the first party of the contract started to using it has come to the knowledge of the party that the video system can hold 34 channels only and therefore the first party had to face serious monetary injury regarding the same. Therefore, it can be said that the Airbus company is liable under the exclusion clause as it was failed to make the additional provision knowledgeable for the first party and as a result of that the first party had to face severe business injury and therefore the Qantas Airlines can claim damage from the Airbus company for the Loss. The main issue of this case is whether the Frank can make the contract valid regarding the present scenario or not. The case is based on the vicarious liability where the main objective is the principal is liable for the act of the agent. The subject matter of the case attracts the principle of law of agency. Certain principles of miss representation of facts are also attracted in this case. It is a common principle that if a contract is made based on certain false statement Ben the law restrict the parties and invalidate the contract on the basis of misrepresentation of fact. The case regarding the misrepresentation has been proved in Eddington v Fitzmaurice[8]. The term miss representation of fact is differed from the puffery regarding the nature and character. In case of puffery, certain self exaggeration has been made and they have no legal significance as decided by the court in Dimmock v Hallet[9]. On the other hand miss representation can be take place in the contract where the contract is made based on false statement. Misrepresentation takes place well the other party to whom the misrepresented facts are delivered accept the same with a believe that the outcome of the facts will be beneficiary for him. A party that certain facts on Mr presented to them has decided it in the case of Hill versus Rose that it is enough to establish the fact and they had relied upon the misrepresented facts. In Lockhart v Osman[10] it was decided that a claim for misrepresentation can only be made when one party did not know about the true nature of the statement and the decision to accept the or misrepresented fact is not affected by the prior knowledge regarding the facts. The miss representation of fat helps the intending party to induce the other party in the contract and cheat them by involving their names in the contractual agreement. However, it is to be bored in mind that Silence could not be taken as an acceptance to the representation of fact. In Derry v Peek[11], it was held at fraudulent misrepresentation is made when the party who accepts then is represented facts knew the outcome of the facts and after knowing the facts they have not made any prudent decision or steps and sign the contract civil agreement based on the misrepresented facts. It is to be decided by the court that in case of fraudulent misrepresentation the party cannot claim any damage for their loss. The second problem regarding the case is based on the principle of agency. Certain exception present under the law of contract regarding the liability of the principal for the acts of the agent. The principal is known as the Vicarious liability. The case was established in the Pioneer Mortgage v Colombus Capital Pty Ltd[12]. The case is divided into two parts- at the first part, Gamma is a sales person and attempt to sell the dishware to one of her relative. The price that were fixed for the same $350. However, she had misrepresented the fact to the owner of the shop and told him that customer does not agree to pay more than $300. Believe the fact, Frank, the owner, agreed to sell the dishwasher at a price of $300. Later on, however, he came to know that there are customers who will pay $350 for the dishwasher. Therefore, in this case, Gamma misrepresented Frank and he can claim damage from her. In the second case, Bob was an employee under Frank and during his work, Bob had done something wrong and Frank suspended him for the same. after fired from the job, Bob sold 10 washing machine to Angela. Angela paid the money through online and then Bob fled away. When Angela asked for the machine, Frank told that Bob do not work there anymore. Conclusion: It either is to be stated that the principle of vicarious liability will apply here and Frank has to pay Angela the money or has to hand over the machine. Frank is bounded by the contract made between Bob and Angela. Reference: Appleman, John Alan, Jean Appleman, and Eric Mills Holmes.Contract Concerns: Reinsurance Contract Formation, Validity, And Judicial Construction. Vol. 14. Appleman on Insurance Law and Practice, 2016. Bourgeon, Jean-Marc, and Pierre Picard. "Fraudulent claims and nitpicky insurers."The American Economic Review104.9 (2014): 2900-2917. Causer v Browne (1952) VLR 1 Chapelton v Barry Urban District Council (1940) KB 532 Derry v. Peek (1889) 14 App Cas 33 Dimmock v Hallett (1866) LR 2 Edgington v Fitzmaurice (1885) 29 Ch D 459. Gergen, Mark P. "Negligent misrepresentation as contract." (2013). Hill v Rose [1990] VR 129 Interphoto Picture Library v Stiletto Visual Programmes Ltd (1988) 2 WLR 615 LEstange v Graucob (1923) 2KB 394 Lockhart v Osman [1981] VR 57 Murphy, Sharon M. "Sudden and Accidental Exception to the Pollution Exclusion Clause in Comprehensive General Liability Insurance Policies: The Gordian Knot of Environmental Liability, The."Vand. L. Rev.45 (1992): 161. Riches v Hogben [1986] 1 Qd R 315 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 Tarr, Julie-Anne. "Insurance contract disclosurean uncertain balance."Insurance Law Journal26.2 (2015): 109-121. Thornton v Shoe Lane Parking Ltd (1971) 2 QB 163 Wakeling v Ripley (1951) 51 SR (NSW) 183 Watteau v Fenwick [1983] 1 QB 346 Young, Derek, et al. "A framework for incorporating insurance in critical infrastructure cyber risk strategies."International Journal of Critical Infrastructure Protection14 (2016): 43-57 [1] Chapelton v Barry Urban District Council (1940) KB 532 [2] Causer v Browne (1952) VLR 1 [3] Derry v. Peek (1889) 14 App Cas 33 [4] Dimmock v Hallett (1866) LR 2 [5] Edgington v Fitzmaurice (1885) 29 Ch D 459 [6] Interphoto Picture Library v Stiletto Visual Programmes Ltd (1988) 2 WLR 615 [7] Appleman, John Alan, Jean Appleman, and Eric Mills Holmes.Contract Concerns: Reinsurance Contract Formation, Validity, And Judicial Construction. Vol. 14. Appleman on Insurance Law and Practice, 2016. [8] Lokhart v Osman [1981] VR 57 [9] Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 [10] Lockhart v Osman [1981] VR 57 [11] Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 [12] Bourgeon, Jean-Marc, and Pierre Picard. "Fraudulent claims and nitpicky insurers."The American Economic Review104.9 (2014): 2900-2917.