Preparing for your Law Assignments:
Introduction:
The following is HOW to get much further in your assignments: you should spend at least 6 hours studying this in the first 2 weeks of your course before you prepare for your assignments:
And please note that there is a very good reason why I am highlight text in red.
This piece of advice WILL help you to achieve at least 2 grades higher, ie if you follow precisely...and I mean precisely.
I have divided this into a few sections:
Chapter 1) Preparing your readings
Chapter 2) Types of assignments
Chapter 3) Types of Questions
Chapter 4) Marking Criteria for case questions
Chapter 5) Structure and Layout, Plagairism, Grammar and references
Chapter 6) Sample Top Individual and Group CA assignments previously submitted by DMS students with teacher's commentaries
Chapter 1) Preparing your readings. Are you qualified to answer these questions?
Look, if you do not understand what is going on, you just can't read your assignment questions and then think that you know where the answer lies and then start your research into that answer. It's like setting sail without having read the map. You sail into the wrong direction and that's the end. Period. By the time you realise your folly, if you did realise, you would run out of time. If you did not realise your folly , you would have sailed to America thinking it was India and called the American Natives Indians.
So at the barest minimum, before you even read your assignment , you would need to have a map, a mind map of the topics covered so far. And this means hard work first to create that mind map.
Once you have the map, you are in a much better position to know where to zoom in on.
SO please do this, no short cut otherwise you will end up like Christopher Columbus sailing in the wrong direction.
Chapter 2: Types of law assignments:
There are two kinds:
a) If there is a Group Assignment: You will need to know that there is a way to work effectively in a Group Assignment: Ah yes, there is a proper way to organise so that the whole group can effectively do less and achieve more.
b) Individual Assignments
a) Group Assignments Guide: How to work together.
i)The usual mistake:
You cut the assignment up like pizza and dole it out. Then stitch it up in the end.
Each question is served with the intellect of one person. When we set Group Assignments , we set it at a higher level of difficulty. Therefore you are asking for trouble when you do this.
So please consider the more orthodox methods below:
Consistency: the smartest member should always volunteer upfront for the role of final compiler & editor. Say that you want to ensure consistency of style & expression. The same line should work at the last minute, too, but next time make it clear earlier.
ii) Another of-repeated mistake: No time to meet....
Chapter 3 : Types of questions
There may be two types of questions in a Law Assignment
a) The essay question:
eg Explain the effect of Donaghue vs Stevenson on the development of the Law of Negligence
The style is like a typical essay that you have been doing all your life, see the link below:
b) The case question: Now I bet you have never seen this kind before and this is where all have difficulty and you need to really spend time on this (at least 3-6 hours)
eg
Jack and Jill went up the hill to fetch a pail of water, Jack fell down and broke his crown and Jill came tumbling after.
Advise Jack on whether he can successfully sue the Landowner.
The above is known as a case question: make no mistake about this, if you do not follow a set style , you are likely to fail.
I) Answer style:
For Case questions style for Assignments and exams
For more references : see
Here goes:
IRAC Method
:
I= Issue R= Rule A= Application C= ConclusionTo draw the closest similarity , it like a math question that you have been doing all your life...
Example of a Math case question:
The circular carpet of the hotel lobby needs to be replaced as it is worn out. Find the area of the replacement carpet. Given its radius to be 7 m.Answer:
I=Issue: To calculate the area of a circle using the formula.
Rule or Applicable Mathematical Law : Area of circle = ∏r2
Application of facts to law:
Area of carpet = ∏ X
7 X
7 Conclusion : 22/7 x 7 x 7= 154 sq m
So now compare with the case question below:
CA2 Question
Facts:
On 1 April, Funster went to Magic Studios. He went on the Start Wars Chair Loop-de-loop roller coaster.
Above the ticket booth was a sign that read: “Look at your ticket, conditions apply”.
Funster paid for the admission and received a ticket, on the front it read in red : “See flipside” and it read as follows:
Any person riding on any of the Magic Studios rides is deemed to have agreed to do so entirely at their own risk and hereby assumes all other risks thereto. Neither Magic Studios nor its employees will be liable for any death, injuries or financial loss suffered in connection with riding at all facilities of magic Studios.
While waiting for his turn, he asked the attendant what the above clause meant, he was told that it meant that Magic Studios will not pay for any death, injuries or loss of any items. Funster had been to rides all over the world and knew it was safe, especially in Singapore, so he laughed it off.
When it was Funster’s turn to board the coaster, the attendant assisted Funster onto the seat and pulled the safety bar down in front of him. As Funster’s seat was pulled away, his shirt was jammed by the safety bar and tore. This was due to the attendant’s negligence in not taking care.
When Funster was halfway along the ride, a naughty cat jumped into the engine room and stopped engine when it was crushed by the moving chain. The safety feature device jammed the ride to a halt.
The roller coaster was stuck on the top of the highest curve and the passengers shrieked with fear. Some fainted and were seen praying.
Whilst waiting for the coaster to resume, Funster had time to tug at the jammed shirt when the safety bar came loose! Before he could scream for help, the coaster started again and as it zoomed up the loop-de-loop , he was flung out and landed with a loud splash on the safety pond and broke several ribs and damaged his new iPhone 4S beyond repair.
Advise Funster on his claims.
Notes to students:
a) (There is no need to discuss in detail negligence elements and you may assume that there is negligence on the part of Magic Studios)
b) The case question must be analysed in the following formats:
Part 1: Statement of Applicable Law
Part 2 Application of facts to Law
Part 3 Conclusion
c) If there are more than one Applicable Laws, the same format must be repeated for each applicable Law.
Teacher's comment : The above is a case question.
Right below is an example of a great answer done by DMS students which I have marked with an A**.
Note how the students dissected the issues within the answer into IRAC style :
I= Defining the Issue
R: Rules , defining the applicable Law approximately 40% of the word count
A: Applying the law approximately 40% of the word count
C: Conclusion approximately 20% of the word count
IN FOUR SEPARATE NEAT PARAGRAPHS: I-R-A-C
Sample student's Answer to the above case question:
This student gave a general introduction on the area of Law concerned that would solve the case question.
This issue is regarding the exemption clause. There are four depending factors to consider if exemption clauses are to be valid: Incorporation, Construction, presence of unusual factors, and Neutralisation by UCTA. There are 2 types of cases on incorporation: cases on signed contract and cases on unsigned contract. Cases on signed contract are quite simply, binding on the party no matter the exemption clauses are read or not. If there is no signed contract, the exemption clause is only bound when reasonable steps are taken to bring them to the notice of the other party. In this case we assume Magic Studios is fully at fault and negligent to all the events occurred, especially the engine room should be completely isolated or kept away from kids and animal, so there is no frustration.
The applicable Law is highlighted here, observe how cases are cited in support of the law and the proportion in this section about 40%
1. Applicable Law:
Where an exemption clause is given in a notice, attention must be brought to the other party given in that notice either BEFORE or AT THE MOMENT the contract is made. In Olley v Malborough Court, the court held that the contract was made at the reception. The exclusion clause which was made known after could not be incorporated into the contract.
Although there are 2 types of cases on incorporation, the one we are concerned here is cases on unsigned document. When it is on an unsigned document, like a ticket or voucher, that document will not be considered as a contractual document under the law but only as a receipt given after the contract has already been made. This theory is also called the “ticket cases”
In Chapelton v. Barry Urban District Council, Chapelton hired some chairs to use. A ticket was given to him after he paid for the hire. On the back of the ticket was a term of an exclusion clause. However, he was injured after sitting on the chair and so he sued. The court held that the ticket issued to him was only a receipt, not a contract. Thus the exclusion clause could not be incorporated in to the contract since the contract had been formed prior to that.
However, there are 2 cases which the court held that when reasonable steps are taken to bring notice to the other party, exclusion clause is valid. In Parker v South Eastern Railway Co., a ticket with words ‘see back’ on the face and exclusion clauses on the back was issued to the plaintiff. Parker was aware of the clauses but did not read them. (See also Thompson v LMS Railway Co.)
Teacher's comments : see what happens below when you apply the facts to the law , compare this with the maths question above. Again note the proportion of word count ...approx 40%
Applying fact to law:
For exclusion clause to be valid, notice must be brought to the attention of the other party. However, Funster was not brought to attention by any attendant or ticket seller concerning the sign above the ticket booth before or at the time he purchases his ticket.
On the other hand, in Chapelton v. Barry, Chapelton was not notified of the notice when he hired those chairs and then a ticket was issued to him. Similarly, Funster was not aware of the details of the clauses until he made the purchase and got the ticket, which is when the contract had already been formed. For this reason, the exclusion clause cannot be incorporated after the formation and thus become invalid. Moreover, since the ticket was merely a proof of payment instead of signed document, it was then not regarded as a formal or a signed document. Therefore, it had no power unless it was on a signed contractual document.
Nevertheless, the notice above the ticket booth and the words on the face of the ticket may be considered reasonable steps to bring notice to Funster as seen in Parker v South Eastern Railway Co and Thompson v LMS Railway Co. In addition, Funster was aware of the existence of the clause and he also asked one of the attendants. For these reasons, the court may allow Magic Studios to rely on them.
Teacher's comments: The conclusion should always state :
a) who is liable
b) and where applicable , for how much and how is this loss calculated.
Again the proportion here is approximately 20%
Conclusion:
It may be that the notice is not incorporated because it came after the contract and the ticket is considered as a receipt, so the clause is not binding. However, from 2 cases we can see the court may decide in favour of the Magic Studios.
Chapter 4: Marking Criteria for case questions
Here's the general marking criteria for case questions used for CAs as well as exams
| Unsatis factory=F | Satisfac tory=D | Good= C | Very Good=B | Exce llent = A | Com ments |
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Adoption of a clear structure and format of answer into: a) Applicable Laws, b) Application of facts to Law c) Conclusion |
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Clear usage, statement and explanation of relevant applicable Laws |
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Original and clear argument, Logical and convincing discussion on Application of facts to Laws |
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Appropriate referencing (in‐text and list of references) |
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Number and quality of references At least 5 for Individual Assignment and 10 for Group Assignments |
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Clear and comprehensive written style (spelling, grammar, syntax etc) Please make sure you use “Grammar and Spell check” functions to check your submissions. |
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Chapter 5 :
a) avoid plagiarism : paraphrasing skills
b) How to use references style:
http://www.youtube.com/watch?v=wBQ0bhHe9KM&feature=relatedc) Layout and Structure
Observe the sample essays below , they are organised into IRAC style, well paragraphed, structure for clarity.
d) Grammar and spelling.
With the availability of grammar and spell=check functionality, poor grammar and spelling is now seen more as a motivational issue than an issue concerning your cultural background.
In short , I accept no excuses.
Chapter 6 : Sample Top Individual and Group CA assignments previously submitted by DMS students with commentaries
A) DMS Student sample answer: Result: A+
Part a
Identify the issue:
The key issue is whether Kang has the right to claim his refund and return of the television set based on the terms implied by legislation.
Introduction:
The Sale Of Goods Act (SOGA)’s purpose is to regulate the sale of goods, to ensure that unfair dealings are reversible, to the benefit of consumers. This applies only to sales of goods, and not deeds, web-based sales in Singapore and international sales.
Under SOGA, there are five implied conditions to be exercised in order for the sale to be completed such as passing of title and right to sell (section 12), correspondence with description (section 13), satisfactory quality (section 14(2)), fitness for purpose (section 14(3)) and correspondence to sample (section 15).
Applicable law:
In section 13, sale by description, states that the goods sold must be identical to its description. The general rule will still comply when goods were chosen and inspected by the buyer. The exceptional case will be buyer buying goods based on his own knowledge, without relying on the description.
In Beale v Taylor [1967], the seller sold a car, which was made up of 2 other cars to the buyer, but described the car as an original to make the sale. The buyer, without any expertise, did an inspection. The court held that there was a breach of condition, as the car sold did not match with the seller’s description. The buyer was able reject the sale and claim for damages.
In Harlington & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd[1990], the buyer’s employee inspected and bought paintings “by Muenter” from a seller who revealed that they had no knowledge on Muenter’s work. It turns out that the painting was a carbon copy. Court held that the buyer was not an innocent party as he bought the painting based on his professional judgment. Therefore, he could not sue the seller.
In Re Moore & Landauer [1921] , the goods of 24 peaches in a tin was rejected because the description of the contract was 30 peaches in each tin. It was clearly out of description as compared to the contract.
In Arcos Ltd v EA Ronaasen & Son [1933], there was a breach of section 13. The 9/16 inch thick wooden staves delivered were different from the description of ½ an inch in the contract although it did not affect its purpose.
Application of Facts to Law:
According to Kang, he wanted to purchase a television that was identical to the display set as case stated “ Black LCD screen colour tv, 42 inch,model 42C35, 17kg”. Although, he did not examine the television at the point of payment, he made repetition that he would acknowledge as long as the description matches as stated. However, the goods that was delivered was “Grey in colour, 37 inches” and the specifications of the two sets were a major difference compared to what was shown to him in the first place. Hence, Kang could reject the television as long as the specifications did not fulfilled the stated description therefore Kang could sued for breach of condition. See: Beale v Taylor (1967), Re Moore & Landauer (1921) and Arcos Ltd v EA Ronaasen & Son [1933]
In contrast to the case Harlington & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd(1989), Kang had shown reliance on the description by the salesman. Kang did not depend on his own knowledge about the television set, therefore he is eligible for the claim.
Conclusion:
Due to the goods delivered mismatches with the specifications Kang wanted, he has the right to fully depends on the breach of Section 13 under SOGA. This will enable Kang to dismiss the goods and get compensated for his claim.
Applicable law:
In SOGA, Section 14(2), goods sold must be of satisfactory quality. Satisfactory quality can be classified and applies to such issues: fitness for purpose, appearance, freedom from defects, safety and durability.
In
Stevenson v Rogers (1999), the claimant sued for breach of Section 14. But the fishermen argued that the transaction between them was not considered as a business. As his main areas of expertise was catching and selling fishes. Court held that as long as there is a transaction of sale, it would be
distinguished as a business and has to satisfy Section 14(2) to ensure satisfactory quality.
In Rogers v Parish (Scarborough) Ltd (1987), the buyer bought a brand new car but it was faulty and some defects was found on the car although it can still be driven. The court held that there was a breach of section 14(2) in the interest that the buyer should own the car in perfect condition.
Application of Facts to Law:
In any point of a business, the seller had to ensure that every goods sold to every distinct customer are believed to be of satisfactory condition. In this case, as Kang chose not to inspect the new TV set, as offered by the salesperson, defects could not be inspected, and any reasonable person would assume that the product in the store would be in perfect condition. However, after it was delivered, Kang identified some minor scratches and audio system’s volume could not be adjusted by remote. According to Stevenson v Rogers (1999), the store has to ensure the quality of the television is satisfactory and as well as the sound system. With compliance to Rogers v Parish (Scarborough) Ltd (1987), the television is new , therefore it should be delivered in a perfect condition which must be free from scratches.
Conclusion:
Kang could reject the television set as there was a breach of section 14(2) by the seller. The seller is liable to Kang and compensate him with the claim.
Applicable law:
In SOGA, Section 14(3), goods sold must fit for the purpose required by the buyer. Even if the buyer never stated his intention clearly, it is understood that the goods are to be fit for its purpose, when a product’s function and general use by normal people are apparent.
In Godley v Perry [1960], Godley bought a catapult and followed the instructions accordingly, however he was injured after using it. Court held that it was unfit for purpose as how it is designed for. Therefore, Perry is liable for the claim.
In Grant v Australian Knitting Mills [1936], the buyer developed dermatitis due to chemicals in the underpants. The court held that the seller with breach of section 14(3) because the purpose of the underpants is to wear but the condition was unfit for wearing.
National Foods Ltd v Pars Ram Brothers (Pte) Ltd [2007], the court held the seller with breach of section 14 (3) as the goods that were sold by the seller was unfit to consume.
Griffiths v Peter Conway Ltd [1939], the buyer did not informed the seller to take additional precaution due to her sensitive skin. Court held that the seller was not liable as she did not make the notification in the first place.
Application of Facts to Law:
Kang had made his purpose obvious and clear to the salesman that he wanted to purchase a television for home use. However, the television that was delivered to Kang was unfortunately faulty, similar to the case of Godley v Perry [1960]. With regards to Grants v Australian Knitting Mills and National foods Ltd v Pars Ram Brother 2007, amplifying the audio volume with the remote control made no effect on the television’s audio system. The remote control is part of the television set, and control of the volume is one of its major functions. Thus, audio system makes the television unable to be utilized comfortably, as well as defeating the reason of purchasing a new television set. Therefore, goods are not reasonably considered fit for purpose.
In contrast to the case Griffiths v Peter Conway, purpose was made known therefore the salesman understood Kang’s intention for purchasing the television set. Hence, salesman is liable for the breach of condition under S14(3), fitness for purpose as Kang had made his intended use known.
Conclusion:
The salesman was deemed responsible and liable for such mistakes made as conditions in the contract are not fully carried out. Therefore, Kang could withdraw the contract under the sale of good act.
(1376 words)
Part b
Mediation and Arbitration are both methods of Alternative Dispute Resolution (ADR). Both have their own disadvantages and advantages.
Mediation is a voluntary and confidential operation where both parties will sit down and discuss with a facilitator (a person who is neutral towards both parties) and derive a conclusion where both parties can agree. Mediation also saves time and costs as it is done in privacy and does not involve any case law or courts except the agreements must be binding by virtue of law of contract.
In contrast, Arbitration is totally different to mediation. Arbitration is similar to having the case held in a court style but less formality of it and usually resolved both international and domestic issues. It will held to public. It will be done by an arbitrator who is also a judge and the conclusion will be passed out by him. The parties are allowed to choose their own arbitrator as there will be no appealing for both parties once the arbitrator finalises the hearing unless the decision involves a question of law. In arbitration, disputes are settled fast, usually taking around 3 to 6 months. There is a chance that mediation is faster. It is relatively more expensive than mediation but definitely cheaper than a court hearing. Both mediation and arbitration could only proceed the hearing only with the acknowledgement of both parties.
If one is going for mediation, the store is able to keep this case confidential so that it will not affect its business reputation. Both parties can also save their costs and time by going for mediation to settle their dispute and usually it can be resolved within a week or two. Furthermore, both Kang and the store are able to come to a decision whereby both parties agreed and not to any other judgement given by the arbitrator which might be unfair to either party.
Therefore, we would recommend Kang and the store to settle the case in terms of mediation as it will be cheaper, in terms of time and money, for both parties as well as a satisfy conclusion. (350 words)
Referencing:
Textbook:
Ravi Chandran, Introduction to Business Law in Singapore, Fourth Edition.
Cases:
1.Beale v Taylor [1967]
2. Harlington & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd[1990]
3. Re Moore & Landauer [1921] 2 KB 519
4.Arcos Ltd v E A Ronaasen & Son [1933]
5. Stevenson v Rogers [1999] 1 All ER 613
6. Rogers v Parish (Scarborough) Ltd [1987]
7. Godley v Perry [1960]
8. National Foods Ltd v Pars Ram Brothers (Pte) Ltd [2007]
Ravi Chandran, Introduction to Business Law in Singapore, Fourth Edition.
9.Grant v Australian Knitting Mills [1936]
10.Griffiths v Peter Conway Ltd [1939]
Statute:
11. Singapore Academy of Law , 2012
Teacher's comments :
B) DMS Student sample : Result A+
Please observe the students' work for the following "winning" traits:
a) Answers are distinctly separately into IRAC style for EACH issue (there could be many issues in one case question and a each issue is solve with one set of IRAC. SO if you have spotted 4 issues , then it's 4 sets of IRAC. :
Issue:
Applicable Law: approx 40% of the words used
Application of facts to law: approx 40% of words used
Conclusion: approximately 20% of words used
b) Research effort: Observe that their effort goes beyond the stipulated minimum.
c) Keywords of applicable facts applied together with keywords of the applicable law.
d) Completeness of conclusion : who is liable to who and for how much.
e) Precision of language
Advice : this must be the same approach to case questions in the exam.
The difference between the answering style in a case question and an essay question is that the applicable law is more precise and directly used , whilst in the essay question , the general law is introduced first and all the sub components are introduced.
Table of Contents
Issue........................................................................................................ 2
(i) Applicable Law................................................................................. 2
(i) Applying fact to law......................................................................... 2
(i) Conclusion....................................................................................... 3
(ii) Applicable Law................................................................................ 3
(ii) Applying fact to law......................................................................... 3
(ii) Conclusion...................................................................................... 4
(iii) Applicable Law............................................................................... 4
(iii) Applying fact to law........................................................................ 4
(iii) Conclusion...................................................................................... 4
(iv) Applicable Law............................................................................... 5
(iv) Applying fact to law........................................................................ 5
(iv) Conclusion..................................................................................... 5
Reference................................................................................................ 6
The case turns upon the question whether Wow Pte Ltd has breached any terms in the contract it had signed with Create Pte Ltd. Wow Pte Ltd is an event management company and Create Pte Ltd has engaged Wow Pte Ltd.’s service to organize a motivational seminar for the employees of Create Pte Ltd. The speaker for the seminar is Jinto Kawasooki, a renowned motivator for his extraordinary ability to stimulate his audience towards their life goals. We look into whether Wow Pte Ltd had fulfilled the terms in the contract and if not, to what extent had Wow Pte Ltd breached the terms. We also assess the degree of consequences should there be any breach of the terms in the contract.
(i) Applicable Law
Teacher's comments :
Do note that the facts of the case question do not appear in this section at all, they will be addressed in the next section Application of Fact to Law.
A condition is a term that is very crucial or fundamental to the contract. It is a declaration of fact or promise which go to the root of the contract (Poussard v Spiers (1876)). A breach of condition grants the non-breaching party the discretion to affirm the contract, or, alternatively, discharging the contract. In either case, the non-breaching party may also claim damages. Whether a term is classified as a condition rely upon numerous factors such as the initial intention of the parties and whether past cases have held the term to be a condition.
(i) Applying fact to law
The heart of the question was whether the speaker for the seminar, which was Jinto Kawasooki, has spoken exclusively to the employees of Create Pte Ltd on 1st to 3rd July as stated in the contract. Being the main intention of the parties is organize a motivational seminar, the speaker will be held as the most important personnel for the event. The term is a condition since a seminar cannot proceed without a speaker. The condition requires Jinto Kawasooki to be present and speak exclusively to the employees of Create Pte Ltd on 1st July to 3rd July. Nevertheless, Jinto Kawasooki only spoke on the first day and attended the gala dinner on the last day. This implies that Jinto Kawasooki has failed to perform his duties on the 2nd and 3rd July. To complete the picture, Jinto Kawasooki has no legitimate excuse not to complete his duties on the above dates considering that he is healthy. Wow Pte Ltd has thus breached the term (i) in the contract.
(i) Conclusion
Wow Pte Ltd is liable to Create Pte Ltd for the breach of term (i) in the contract. Create Pte Ltd has the option to affirm or terminate the contract. Either case, Create Pte Ltd can claim damages from Wow Pte Ltd.
(ii) Applicable Law
An innominate term is a nameless term and it is applied when a term does not fit into either “condition” or “warranty” (Hong Kong Fir Shipping v Kawasaki KK (1962)). It covers terms which can be breached resulting trivial consequences, as well as those resulting serious consequences. If the former occurs, a remedy in damages should be adequate. If the latter occurs, the non-breaching party would be entitled to treat the contract as discharged (See Sports Connection Private Limited v Deuter Sports (2009)). According to HongKong Fir, the basic test is whether the breach is such as to deprive the injured party of substantially the whole benefit which it was intended to obtain as the consideration for his own undertakings.
(ii) Applying fact to law
In this case, there should be a one-hour individual contact time with the Speaker for all participants of the seminar. Many employees have registered for the seminar purely because Jinto Kawasooki is an outstanding motivator and the one-hour individual session would be a rare opportunity for them to speak confidentially with him. In other words, this one-hour session is an essential item for the event and it is the event’s selling point – a value-adding service. This implies that there is a duty for this service to be carried out for the seminar to be completed as a whole. In spite of this obligation, Jinto Kawasooki did not have any individual sessions though he did speak to those who approached him during breaks on the first day. Therefore, there was a breach of term (ii) in the contract. In addition, this breach is likely to have deprived Create Pte Ltd from substantially the whole benefit which it was intended to obtain initially.
(ii) Conclusion
Wow Pte Ltd is liable to Create Pte Ltd for the breach of term (ii) in the contract. Damages may be obtained for breach of warranty to compensate for non-monetary loss, i.e. for the disappointment caused to the employees of Create Pte Ltd. However, supposing that the court held Wow Pte Ltd to be liable for a breach of condition, Create Pte Ltd is entitled to discharge the contract.
(iii) Applicable Law
A warranty is a term which is less significant and constitute secondary obligations. If a warranty is breached, the breach would not go as far to the root of the contract. In addition, it does not give the non-breaching party the right to discharge the contract. The contract still stand and the non-breaching party can only claim damages (Bettini v Gye (1876)).
(iii) Applying fact to law
This case requires the speaker to use Powerpoint slides as visual aids for the seminar and Wow Pte Ltd will provide the necessary facilities for such visual aids. In other words, the actual purpose for this term is to provide visual aids for the audience. On one hand, Jinto Sawasooki did not use the stated method to provide visual aids. On the other hand, Jinto Sawasooki did provide visual aids by the means of flip charts instead of Powerpoint slides. Either means eventually provides visual aids for the audience. So to put it differently, although Wow Pte Ltd has breached the warranty of the contract, the breach is a minor breach. Jinto Sawasooki only swapped the supposedly agreed Powerpoint slides to flipcharts and this case is similar to Jacob & Youngs v. Kent (1921), whereby the builder replaced his own type of materials for specified materials. The substituted materials worked just as well as the specified.
(iii) Conclusion
Wow Pte Ltd is liable to Create Pte Ltd. Create Pte Ltd can only recover the amount of his actual damages. In this instance, it is the difference between the value of Powerpoint slides and flip charts. Since the method of presenting the speech does not affect its function of providing visual aids, the difference in value in zero. Therefore, no damages have been incurred and Create Pte Ltd would receive nothing.
(iv) Applicable Law
Unfair Contract Terms Act (UCTA) was proposed for the aim of protecting parties who entered into business contracts. Although term (iv) has been successfully incorporated into the contract, it can still be neutralized by UCTA.
Section 2(1) of the UCTA states that any exemption clause that omits liability for death or personal injury due to negligence is void.
(iv) Applying fact to law
Wow Pte Ltd “will ensure the safety of all participants on the premises” but it “will not be responsible for any loss or injury suffered by any seminar participant during the seminar”. Despite the term (iv) indicating that Wow Pte Ltd will not be responsible for any loss or injury, section 2(1) of the UCTA renders the part where Wow Pte Ltd omits liability for death or injuries void. Therefore, the term (iv) is nullified and made void even though it is incorporated into the contract.
(iv) Conclusion
Wow Pte Ltd will be liable for the injury of the participant because of section 2(1) in the UCTA. The company will have to compensate for the medical costs, as well as the damages caused to the participant for missing the last day of the seminar.
(1299 words)
Textbook:
Ravi Chandran, Introduction to Business Law in Singapore, 4th Edition.
Benny S Tabalujan &Valerie Du Toit-Low, Singapore Business Law, 4th Edition.
Benny S Tabalujan, Singapore Business Law; Study Guide, 5th Edition.
Cases:
Poussard v Spiers
Hong Kong Fir Shipping v Kawasaki KK
Sports Connection Private Limited v Deuter Sports
Bettini v Gye
Jacob & Youngs v. Kent
Statue:
Unfair Contract Terms Act (UCTA)
Web Source:
Teacher's comments :
C) DMS Student sample : Result A+
I)
Applicable law
Terms of the contract can be classified into three category. They are Conditions, Warranties and innominate terms. It is very important to classify them into different category because if the innocent party want to end the contract other than just wanting to sue for damages, it depend on the type of term breached.
Conditions are important and very basic term of the contract that go to the root of the contract. A breach of condition will let the innocent party to end the contract and/or also claim damages from the contract breaker.
In (Behn V Burness) case, the court held the term '' now in the port of Amsterdam '' as condition as it is important. (See also The Migalis Abgelos and Poussard V Spiders)
Applying Facts to Law
In this case, Create Pte Ltd and Wow Pte Ltd signed a contract and one of the term is that the speaker for the seminar will be Jinto Kawasooki who will speak exclusively to the employees of Create Pte Ltd on first to third July.
This is a Conditions in the contract as it is the most important part of the contract. Many employees of Create Pte Ltd signed up for the seminar purely because Kawasooki is known around the world for his remarkable ability to motivate and inspire his audience towards their life goals. If Kawasooki is not the speaker, many people will not signed up for the seminar. Therefore, it is a condition in the contract for Kawasooki to speak to the employees on first to third July.
However, Kawasooki only spoke on the first day instead of the 3 day stated in the contract. In this way, he did not fulfill the condition of the contract.
Conclusion
Since it is a conditions in the contract, Wow Pte Ltd is liable to Create Pte Ltd and Create Pte Ltd can void the contract and/or claim damages form Wow Pte Ltd.
II)
Applicable law
Warranties are less important term which does not go into the root of the contract. Once someone breach the contract, the innocent party cannot end the contract but is allow to claim damages.
In Bettini V Gye case, the court held the rehearsals as warranty as it is does not go to the root of the contract. Gye could only claim damages and cannot end the contract.
Applying Facts to Law
In this case, Create Pte Ltd and Wow Pte Ltd signed a contract and one of the term is that participants of the seminar will have a one-hour individual contact time with the speaker who is Jinto Kawasooki.
The one hour individual talk is just an opportunity and an additional event to the seminar. Not all the employee will have the time and want to talk to the speaker and therefore it is less important and count as a warranties in the contract.
However, Jinto Kawasooki did not have any individual sessions for all three days but he only speak to those who approached him during break on the first day. Therefore, he did not fulfil the condition of the contract.
Conclusion
Since some of the employees of Create Pte Ltd never have the chance to talk to Jinto Kawasooki, Wow Pte Ltd is liable to Create Pte Ltd and Create Pte Ltd can claim damages form Wow Pte Ltd but can not void the contract.
III)
Applicable law
Innominate are terms which need to depend on the severity of the breach. Rather than grouping them in terms like conditions or warranties, it look at the overall effect of the breach which affect the contract.
If it is breach in a serious way, the innocent party can sue for damage and end the contract like a condition term. However if breach in a less serious way, the innocent party can only claim damage like a warranties terms .
The innominate term was established in the case of Hong Kong Fir Shipping V Kawasaki KK. The court held that the term was an innominate term as it cover both major and minor issues like a lost of nail or the whole ship being unseaworthy. The court hold and plaintiffs could not end the contract but could claim damages since it is a minor issue.
Applying Facts to Law
One of the terms also stated that the speaker will use PowerPoint slides as visual aids for his seminar and the organizer will provide the necessary facilities for the visual aids.
However, Jinto Kawasooki use flips charts instead of PowerPoint slides for his seminar. He explained that it was more of his style to use flips charts. The question is whether the breach allow Create Pte Ltd to end the contract. In this case, it is an Innominate terms because it cover both major and minor issues such as incompatible issue with the facilities and small different in visual effect or serious issue which affect the seminar not being able be carry on.
During the seminar, nothing major issue had happen for using flips charts
Conclusion
Since the breach is not very serious, Wow Pte Ltd is liable to Create Pte Ltd and Create Pte Ltd can not void the contract but can only claim damages form Wow Pte Ltd.
IV)
Applicable law
Exemption Clause is a term which restrict or limit the liability when there is a breach of contract. Such clauses are usually use as a defence for protection.
Incorporation is the making of the exemption clause part of the contract by signature or notice.
When the contract need signing, any exemption clause will be incorporated once the contract is signed even if there is no adequate notice of the clause.
In L'Estrange V Graucob case, the exemption clause is valid even if it is not read as it is part of the contract that is signed.
However, even if the contract is form ,under Unfair Contract Terms Act (UCTA) section 2(1), any exemption clause that exclude liability for personal injury or death due to negligence will be cancel.
Applying Facts to Law
The contract was signed containing the exemption Clause that stated that the organizer will not be responsible for any loss or injury suffered by any seminar participant during the seminar.
Under the Incorporation rule, the exemption Clause is valid once the contract is signed.
However, in this case there was personal injury involved when a light bulb cracked and some of the glass splinters injured a participant's face. Under Unfair Contract Terms Act (UCTA) section 2(1), the exemption clause will be void since Wow Pte Ltd negligence has caused personal injury to one of the employee of Create Pte Ltd.
Conclusion
Since the exemption clause was void, Wow Pte Ltd is liable to the victim of Create Pte Ltd who suffered injury. The victim can claim compensation and refund from Wow Pte Ltd.
Referencing
Textbook:
Ravi Chandran, Introduction to Business Law in Singapore, Fourth Edition.
Cases:
Behn V Burness Case
The Migalis Abgelos Case
Poussard V Spiders Case
Bettini V Gye
Hong Kong Fir Shipping V Kawasaki KK
L'Estrange V Graucob Case
Number of words :1142
Teacher's comments :
D) DMS Student sample : Result A+
The following information is found on the website of the Inland revenue Authority of Singapore (IRAS)
Factual scenario:
Evander owns a company and has been inflating his expenses in his company accounts fraudulently for the past 20 years. A total of S$1 million of expenses were invented. Recently his accounts clerk was fired by Evander for sleeping on the job. The angry clerk found out about the above IRAS website and rewards system and has consulted you on whether this reward is legally binding.
Q 1: What is the applicable contract law relating to an Offer for Rewards by IRAS? 20 marks
Q2: How would you apply the law to advise the Clerk whether IRAS is legally bound to pay the clerk upon successful collection of tax recovered? 20 Marks
Q3: What is your conclusion? 10 marks
Teacher's comments :
The below CA happens to be the best mark I have ever awarded to any student in my four years teaching the DMS programme.
It is intended to give you an idea of how motivated this student is in pursuing excellence.
Perfection! Watch and learn!
Table of Contents
CASE 1 : ANGRY CLERK V. IRAS ...................................4
ISSUE......................................................................................4
RULES OF LAW.......................................................................4
RULES OF LAW (CONTINUED).................................................5
ANALYSIS – APPLICATION OF FACTS TO LAW .......................5
CONCLUSION..........................................................................5
CASE 2 : SUN TZE V HALIM.............................................6
ISSUE......................................................................................6
RULES OF LAW.......................................................................6
RULES OF LAW (CONTINUED).................................................7
ANALYSIS – APPLICATION OF FACTS TO LAW .......................7
CONCLUSION..........................................................................7
BIBLOGRAPHY ..................................................................8
Koh Tat Wei, Edward
SIM University, 461 Clementi Road
Singapore, 599491
Singapore High Court
Angry Clerk,
Plaintiff,
vs.
Inland Revenue Authority of Singapore,
Defendant
Case No.: 8888888
Whistleblower’s reward
Issue
The issue is whether Inland Revenue Authority of Singapore’s (IRAS) advertised promise to
reward 15% on tax recovered and capped at $100,000 from the successful investigation of
Evander’s company to the world at large; in this case the clerk, is binding on IRAS, i.e.
whether IRAS’s advertised reward is a valid offer to the world at large and if there is any
evidence of seriousness. We also look at if the clerk’s acceptance of the offer amounts to a
valid acceptance.
Rules of Law / Law
Offer and acceptance are two elements that make up the four that constitutes a legal contract.
Offer and acceptance go hand in hand to create an agreement. “Offer” alone is featured by
“invitation to treat” and “evidence of seriousness”. “Invitation to treat” should not be
confused with “offer”; most advertisements (Partridge v Crittenden) and shop displays
(Fisher v Bell) are not “offers”. An “offer” is an indication of willingness by an offeror to
enter into a legally binding contract on certain terms. This is legally binding to the offeror as
soon as the offeree has accepted it. The addressed offeree can be a single person, a group of
people or even to the world at large (Carlill v Carbolic Smoke Ball Co.). The contract
(Carlill v Carbolic) is known as a unilateral contract that can be accepted by any offeree from
any corner of the world by performing an act that indicates their agreement with the bargain.
The disparity found in the Smoke Ball case that indicates it is not just an “invitation to treat”
alone; is the evidence of seriousness i.e. “£1000 is deposited with the Alliance Bank, Regent
Street, showing our sincerity in the matter.”
In “acceptance” part of a legally binding contract, whenever the motives are questionable;
“knowledge of the offer” will define whether there is a valid acceptance. An acceptance that
is wholly motivated by factors other than the existence of the offer has no effect (R v Clarke).
In that case, Mr Clarke provided information in a murder case investigation and told the
police it was “exclusively in order to clear himself”. In contrast, however small the part of an
“offer” plays in inducing a person to do the required act, there is valid acceptance of the offer
to enter in a legally binding contract (Williams v Carwardine).
Analysis – Application of Facts to Law
In our case of Clerk v IRAS, IRAS is the offeror and the angry clerk is the offeree of this
reward offer advertisement on the website. IRAS’s advertisement on the website is deemed to
be an offer to the whole world; similarly to the Smoke Ball case, and anyone capable of
performing the required conditions can accept it. IRAS should not be able to allege that the
reward offered was “mere puff” as there was plenty of evidence of seriousness to constitute
the advert as a legal offer. On the same website, IRAS supplied detailed address and invited
anyone whom is interested of claiming the reward to come forth in person to the provided
address. To complete the picture that there was evidence of seriousness, IRAS is a
government entity and any reasonable person would view the offer of reward as legitimate.
IRAS should also not be able to defend itself by questioning the motives of the angry clerk
who was just fired from her job in reference of Mr Clarke’s case whose action was motivated
by the goal to acquit himself of the murder investigation. Like Mrs. Williams in the
Carwardine murder investigation, the clerk was fully aware of the offer of reward and was
driven by the rewards system to perform the required actions; thus validating the acceptance
of the offer.
Conclusion
Considering that the information and documents provided by the clerk, the offeree, has led to
the full recovery of the total of S$1 million tax; I would advice the Clerk that, IRAS, the
offeror, is liable to reward him/her 15% of the tax recovered, or in this case, the maximum of
S$100,000.
(667 words)
SIM University, 461 Clementi Road
Singapore, 599491
Singapore High Court
Sun Tze,
Plaintiff,
vs.
Halim,
Defendant
Case No.: 8888888
Post Required Case
Issue
The issue is whether Sun Tze’s acceptance came across to Halim’s offer to seal the contract.
We look into whether Halim’s instruction requiring formal acceptance in the course of post
by letter holds and binds in the postal rule and Sun Tze’s acceptance via e-mail constitutes an
acceptance to the offer. We also investigate have the offer has lapsed by the time the post
arrives at Halim’s hand late due to the mistake by Sun Tze’s new Administrative Assistance.
Rules of Law / Law
Communication of acceptance requires the acceptance, be it orally, in writing or by conduct;
arriving and actually received in the hands of the offeror. Four exceptions to complement the
general rule and make up the applicable law; exist to overrule the general rule, namely Postal
Rule, Silence, Waiver of Communication and Instantaneous Modes of Communication.
Silence does not establish the communication of acceptance unless predetermined in advance
between both parties (Felthouse v. Bindley). Waiver of Communication allows the offeree to
relinquish the need to communicate his acceptance only if expressly or impliedly (Smokeball
case, a unilateral contract) allowed by the offeror. Instantaneous modes of communication
fall back to the general rule of communication of acceptance. Postal Rule is the flipside of the
general rule where it is deemed complete once the offeree posts his acceptance (Henthorn v.
Fraser). However, both parties must assent to the use of this method and must be reasonable
in that situation to use the post i.e. in different town similar to the Fraser case. In addition,
Postal Rule will also not hold if the offeree failed to comply with his due diligence of ensuring that the letter is adequately stamped as required by the Post Office or misaddressed
his acceptance to a different address other than that stated by the offeror (Getreide-Import
GmbH v Contimar SA Compania Industrial, Comercial y Maritima [1953] 1 WLR 207).
Even with that said, it is often put that “The offeror is the master of his or her offer.” and the
offeror may avoid the risk of delay of postage by specifically and explicitly require
acceptance to be valid only when it arrives in his hands (Yates Building Company Ltd v RJ
Pulleyn & Sons (York) Ltd). Offer will also terminate after a lapse of time of the dateline
given in the contract.
Analysis – Application of Facts to Law
In our case of Sun Tze v. Halim, Halim has requested in his contract that the communication
of acceptance must be done by postal, hence Postal Rule applies; where Sun Tze’s acceptance
should seal the contract once it is posted (Henthorn v. Fraser). Unfortunately for Sun Tze,
for the postal rule to hold the letter must have been addressed correctly; which Sun Tze’s
Administrative Assistance failed to do so (GIG v. Contimar SA). While one might argue that
Sun Tze’s e-mail to Halim should have conveyed his acceptance long before the dateline and
is no less advantageous to Halim; Halim has exercised his rights of specifically and explicitly
requiring ONLY postal method will constitute a formal acceptance and no other methods will
be permissible with this statement “…by 8 September failing which the offer will lapse.”
This is in contrast to the case of Tinn v. Hoffman (1873) and Manchester Diocesan Council
for Education v Commercial and General Investments Ltd (1969) where both of them used
the alternate method other than the required one but won the case as the judges inferred that
there were no specific requirement of only one particular method. The letter of acceptance
posted by Sun Tze finally arrived on the 10 th of September, two days after the dateline. Due to lapse of time, Halim’s offer to Sun Tze ceased and Halim have every rights to sell it to
another buyer since coal is a commodity product and we can assume the price fluctuate more
often than not.
Conclusion
Taking into account of the misaddressed acceptance, Halim’s specific instruction, and the
lapse of time, I would advice Sun Tze not to proceed with any legal actions. Sun Tze would
not have any case against Halim and Halim would not be liable to sell Sun Tze the coal.
(648 words)
Bibliography
Carlill v Carbolic Smoke Ball Company [1893] EWCA Civ 1
Felthouse v Bindley (1862) EWHC CP J 35
Fisher v Bell [1961] 1 QB 394
Getreide-Import GmbH v Contimar SA Compania Industrial, Comercial y Maritima [1953] 1
WLR 207
Henthorn v Fraser [1892] 2 Ch 27
Manchester Diocesan Council for Education v Commercial and General Investments Ltd.
[1969] 3 All ER 1593. Chancery.
Partridge v Crittenden [1968] 1 WLR 1204
R v Clarke (1927) 40 CLR 227
Tinn v Hoffman (1873) 29 LT 271
Williams v Carwardine [1833] EWHC KB J44
Yates Building Company Ltd v RJ Pulleyn & Sons (York) Ltd. (1975) 237 EG 183. Court of Appeal
Teacher's comments :
E) DMS Student sample : Result A+
Table of Content
Overall Issue
Applicable Law 1
Applicable Law 2
Applicable Law 3
Overall Conclusion
Overall Issue
The main issue this case is Katie’s concern for if there is a formation of a contract. In the confusing event, Katie’s concern brought us to several factors the we have to address. Such as a contract and its components.
A contract is a consensus ad idem, also known as a meeting of mind where both contracting parties come to a concession. It progresses from an agreement to rights and obligations that are recognized and enforceable by law. There are four depending factors to form a contract. They are offer, acceptance, consideration and intention to create legal intention.
To have a clearer picture of an offer, it is also important to differentiate an offer from an invitation to treat. Therefore, there is an applicable law done up on invitation to treat and another to identify the offer in Katie’s case. There is also an applicable law for acceptance that will be address later in this report.
Subsequently, Katie will be advice regarding this issue.
Applicable Law 1
Issue
This issue is concerning an invitation to treat. An invitation to treat is not an offer. It does not offer a contract but invites others to make an offer to them. It is an invitation for an offeror to make an offer to the provider of the business.
Applicable Law
An invitation to treat is not an offer. It does not offer a contract but invites others to make an offer to them. It is made to the world at large. For example, a display of goods in a store, advertisements, auctions, tenders and quotations are all invitations to treat.
Examples of invitation to treat are Partridge v Crittenden, Fisher and Bell and Pharmaceutical Society v. Boots. Partridge v Crittenden is advertisement. It invites potential customers to make an offer to them by responding to advertisement. Pharmaceutical Society v. Boots illustrates the display of goods in a store. It invites customers to make an offer by taking the product to the cashier. These customers usually have an intention to buy it at the term of the listed price, thus satisfying the term to elevated into a contract.
Applying Facts to Law
In the Applicable Law section, the defination of an invitation to treat is established, in this case, we are only concerned in advertisement and quotation of the invitation to treat.
When Katie made an advertisement in the magazine, “Great IT Gadgets”, she is inviting others to make an offer to her. This is similar to the case of Partridge v. Crittenden. Katie made an invitation to treat by making an advertisement on the magazine. (See Partridge v. Crittenden)
Next, when Jeremy made a reply, he was asking for the details of the laptop. This is not an offer by an invitation to treat also. Jeremy was asking for a quotation but not offering an offer.
Conclusion
Both Katie and Jeremy are making each other an invitation to treat. They are not liable to each other as there was no formation of an offer.
Applicable Law 2
Issue
This issue is concerning contract law, offer.
Applicable Law
An offer is when an offeror indicates an interest and readiness to enter into a contract on specific terms to an offeree. Furthermore, this offer must be communicated to the offeree, either by verbally, in writing or by conduct. An offer can be made to a specific person, a group of people or to the world at large.
Applying Facts to Law
Katie, by quoting a price of $300 to Jeremy, demonstrates her willingness to enter into a contract on the term of selling the laptop at $300. Thus, She has effectively offered a valid offer. The offer is now made to a specific person, Jeremy. These offer then becomes capable of being accepted, thereby forming a potential contract.
Conclusion
In this case, Katie has given out the offer. However, there is no contract until Jeremy accepts the offer.
Applicable Law 3
Issue
The issue in this case concerns foundation of acceptance in the contract law. In this part, I will determine the presence of an acceptance. This is assuming that Jeremy’s message at 1:20p.m contained the fact of his attendance at the designated venue and had the ready cash of $300 for payment.
Applicable Law
The general rule for acceptance is, firstly, acceptance must be communicated either by verbally, in writing or by conduct. Secondly, an acceptance is only communicated when it is received by the offeror. Lastly, it must be an unqualified and unconditional agreement to the offer, else, it would be considered a counter-offer.
Although there are other laws of acceptance regarding instantaneous mode of transmission, the one we are concern here is the Electronic Transaction Act (ETA). Due to recent electronics development, the government passed the Electronic Transaction Act.
Under the Electronic Transaction Act, the general rule of acceptance is at the point of transmission, when the message leaves the information system under the control of the offeree, not reception. If the addressee has an allocated system, acceptance is once the offeree’s message leaves the original system and becomes capable of being retrieved by the offeror. It does not matter when the offeror opens the message and reads it.
Applying Facts to Law
In this case, lets assume that Jeremy’s message at 1:20p.m contained the fact of his attendance at the designated venue and had the ready cash of $300 for payment. If the message contains that information, then Jeremy has indeed conveyed his acceptance in writing. In addition, Jeremy has unconditionally agreed to the price and the venue of transaction. By communicating the acceptance in writing and unconditionally agreed to Katie’s requests, he satisfies the general rule of acceptance.
Next, the general rule of acceptance, in Electronic Transaction Act, is authenticated when Jeremy’s message is sent and left the information system under the control of the Jeremy’s phone. It does not matter when the Katie opens the message and reads it. Even though Katie entered her passwords wrongly and could not receive her instantaneous messages and phone calls.
Moreover, under the applicable law of Electronic Transaction Act, as Katie’s hand phone number is dedicated to Katie, therefore, the message was sent to a person of designated system. The requirement for acceptance of an offer to a person of a designated system is fulfilled. This is because, once Jeremy’s message was sent, the message is considered received as it becomes capable of being retrieved.
Conclusion
These contracts formed entirely by electronic records are legally valid and enforceable. Thus, there is a valid acceptance from Jeremy to the offeror, Katie. As a result, Katie Is liable towards Jeremy.
Overall Conclusion
As seen in the three applicable laws above, they fulfilled the offer and acceptance of a formation of a contract. There is also an intention to create legal relations and asumming there is a consideration, a valid contract is thereby formed.
There is a contract formed between Katie and Jeremy. As a result, Katie cannot sell her laptop to her brother’s friend as she is liable to Jeremy. She can be sued for breaking the contract if she sells the laptop to her brother’s friend.
Teacher's comments :
This issue is regarding the exemption clause which excludes or limits the liability of the party. The party who rely on exemption clauses is protected from being liable for breach of contract or negligence. There are four points to know whether exemption clause is effective: incorporation, construction, presence of unusual factors, and neutralization by UCTA. In this case, we will look upon what Patrick’s rights are and if Fred‘s company is liable for Patrick’s laptop which crash after repairing by Fred’s company. We will also look into if exemption clause is valid or invalid in the contract and if Patrick can sue Fred’s company.
An exemption clause becomes incorporated into a contract in two ways: by signature or notice. When an exemption clause is given in a notice, the notice must be brought to the attention of the other party either before or at the time the contract is made.
In Chaplton v Barry Urban District Council (1940), Chaplton received the ticket which involved the exemption clause and retained without reading it. The court held that no reasonable person would expect to find contractual terms on the ticket since it would be considered as a receipt for money paid.
In the case of Olley v. Marlborough Court Ltd (1949), the court held that the contract was made at the reception. The exclusion clause which was made known after the contract was signed could not be incorporated.
In addition, if there is a previous course of dealings which included an exemption clause between the parties and the parties intimated that the present contract would be bound by the terms of the earlier contracts, then the exemption clause may be incorporated.
In Spurling v Bradshaw (1956), the defendant argued the exemption clause was not incorporated into the contract as he signed the invoice after the contract was made. However, the court held that the clause is valid according to the previous dealings that the defendants would be aware of the term from the previous contracts so he had no right to claim compensation.
In Henry Kendall & Sons v William Lillico & Sons & Ors (1969), the exemption clause formed part of the contract when the exemption clause was made known from previous contracts.
Since the time Patrick told Fred that he would be able to repair the laptop by Thursday around 12 noon; Fred already agreed to leave the lap-top with Patrick and accepted with the repair fee which cost $400, it could be considered as the oral contract, not a written contract between them. But even the contract was not signed; the exemption clause may still be incorporated into the contract.
Applying legal principles above may be relevant to the scenario given:
Firstly, exemption clause was contained in the standard invoice. The law may not regard the invoice as a contractual document because an invoice indicates the sale transaction and it was only a commercial document issued. So, this unsigned document is regarded simply as a bill sent by the company to Fred about his lap-top preparing, similarly the case of Chaplton v Barry Urban District Council (1940). Secondly, the requirement to sign the invoice came after the contract was formed and the payment had done, so that notice was too late. Similarly, in the case of Olley v. Marlborough Court Ltd (1949), the exclusion clause is known after the contract was made at the reception so it is not incorporated. From these two factors given, exclusion clause was merely not part of the contract.
On the other hand, due to the fact that Fred was a regular IT service man, who has been serving Patrick for the past 3 years. So by right, the defendant was supposed to be aware of the clauses because these clauses were incorporated through previous contracts. In Spurling v Bradshaw (1956), the court held that the exemption clause is incorporated through previous dealings that the defendant was aware of the term from the earlier contracts. It is similar with the case of Henry Kendall & Sons v William Lillico & Sons & Ors (1969).
To conclude, the notice may be not incorporated because it came after the contract and the Invoice is considered as a bill, so the clause is not binding. However, the exemption clause is valid since this term was known from previous contract.
Once an exemption clause is incorporated, then it has to be construed or interpreted to see whether it clearly covers the loss or injury suffered by the innocent party. Obviously, the wider the clause, the more protection the party relying on it will be provided. There are two rules of construction: Contra Proferentem Rule and Main Purpose rule.
If there is any ambiguity to the meaning of an exclusion clause, the clause will be construed “contra proferentem” that against the party who proposed the contract or clause.
In Houghton v Trafalgar Insurance (1954), there was a lack of clarity in the exemption clause. The insurers’ policy stated “any load” which caused ambiguity. The court decided that the insurance company could not be exempt from liability.
On the other hand, the main purpose rule states that an exemption clause will generally ineffective if it is inconsistent or repugnant to the main purpose of the contract.
In the case of Glynn v Margeston (1893), the court decided that clause that was printed must not interpret in such a way that it destroyed the basic of the contract and its plan.
In the case, the exemption clause in the invoice is not ambiguity. It clearly states that “any damage” including “without limitation, damage for loss of business profits” or “any other pecuniary loss”. Unlike in the case of Houghton v Trafalgar Insurance (1954), the exclusion clause causes ambiguity. Moreover, there is no fundamental breach in this case like in Glynn v Margeston (1893) where the exemption clause defeated to the main purpose of a contract.
In conclusion, the exemption clause is effective and it allows the IT Company to not taking any responsible and being liable for those mistakes and damages made by the user.
If there are any usual factors which may limit the effectiveness of the exemption clause such as a misrepresentation about the scope and extent of the clause by the party relying on it, then it will be invalid.
In Curtis v Chemical Cleaning & Dyeing Co (1951), the court held that the defendant could not rely on the exclusion clause because the plaintiff signed the receipt due to misrepresentation
It is known that Fred and Patrick had a previous course of dealings for the past 3 years, which means Patrick was supposed to get familiar with these clauses before and he would have known about the existence and extend of the clause. Therefore, there are no unusual factors such as misrepresentation that limit the effectiveness of the clause. This factor would point towards these clauses being reasonable as well. Fred’s company could rely on the exemption clause and is not liable to this damage as the exemption clause is valid.
Applicable law 4
Although an exemption clause seems to form part of the contract according to the three factors, it may be neutralized by Unfair Contract Terms Act (UCTA) which purpose is mainly protecting consumers entering into business transactions. In section 2(1), an exemption clause is void if it excludes liability for death or personal injury due to negligence.
In White v John Warwick (1953), the court held that the exemption clause could not protect the defendant from being liable for negligence.
In section 2(2), an exemption clause can exclude liability for other loss or damage due to negligence except in so far as the term or notice satisfies the requirement of reasonableness.
The reasonableness of the exclusion clause is determined by these factors: the bargaining position of the parties, presence of inducement to agree the exemption clause, the awareness of the existence and extent of the terms by other party, and compliance with some condition.
In Peter Symmons & Co v Cook (1981), it was held that the firm was acting as a consumer and that to buy in the course of a business. It was emphasized that only in those situations could the buyer be said to be on equal position with his seller.
According to section 2(1) of the Under Contract Term Act, party in the breach cannot exclude their liability due to negligence that related to someone's injury or death. As we look into the case White v John Warwick (1953), the plaintiff hired a bicycle under a contract which has a term that: nothing in this agreement shall render the owners liable for any personal injuries to the riders of the machine hired. However, the plaintiff still can sue the defendant for breach of contract in tort of negligence after the saddle tipped up and caused the plaintiff an accident. Similarly, in this case, the heating up of the laptop caused Patrick an electric shock and burned his index finger. This injury made Patrick could not continue with the presentation. For this reason, Fred's company breached the contract under the UTCA section 2(1) for negligence and cause Patrick's injury. Therefore, Patrick can claim injury and get the compensation.
Whether the exemption clause for the financial loss suffered is enforceable or not depends on section 2(2) of the UCTA and the reasonableness of the clause. Although Patrick did not have equal bargaining power as Fred’s company (Consumer vs Business).Thus from the previous contracts, Patrick is was aware of the exemption clause, he should know about the extent of the clause and agree it. Therefore, the notice given seems to be sufficient and reasonable.
The IT Company will be liable for the injury of Patrick because of section 2(1) in the UCTA but not be liable for financial loss when the deaf was off as the clause is reasonable in section 2(2) in the UCTA.
The exclusion clause was effective based on three factors: incorporated, construction and unusual factors. However, due to section 2(1) of the UCTA, the clause will be neutralized and the IT Company is liable for Patrick’s injury but not liable for financial loss in section 2(2) of the UCTA.
Textbook
<!--[if !supportLists]-->· <!--[endif]-->Benny S Tabalujan &Valerie Du Toit-Low, Singapore Business Law, 4th Edition.
<!--[if !supportLists]-->· <!--[endif]-->Ravi Chandran, Contract Law: Terms of a contract, Introduction to business law in Singapore (fourth edition).
Cases
<!--[if !supportLists]-->· <!--[endif]-->Chaplton v Barry Urban District Council (1940)
<!--[if !supportLists]-->· <!--[endif]-->Curtis v Chemical Cleaning & Dyeing Co (1951)
<!--[if !supportLists]-->· <!--[endif]-->Glynn v Margeston (1893)
<!--[if !supportLists]-->· <!--[endif]-->Henry Kendall & Sons v William Lillico & Sons & Ors (1969)
<!--[if !supportLists]-->· <!--[endif]-->Houghton v Trafalgar Insurance (1954)
<!--[if !supportLists]-->· <!--[endif]-->Olley v. Marlborough Court Ltd (1949)
<!--[if !supportLists]-->· <!--[endif]-->Peter Symmons & Co v Cook (1981)
<!--[if !supportLists]-->· <!--[endif]-->Spurling v Bradshaw (1956)
<!--[if !supportLists]-->· <!--[endif]-->White v John Warwick (1953)
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Statute
<!--[if !supportLists]-->· <!--[endif]-->Unfair Contract Terms Act
CA1 April 2013 :
Due to the complex nature of the Question, there is no one student who has the perfect answer:
I have therefore assembled this from two student's work:
So here is the best assembled answer for April 2013:
Brief overview of law of contract
Contract is a written or spoken agreement of 2 or more people intended to be enforceable by law. It is formed when all the elements of contract are fulfilled, namely, offer, acceptance, consideration and intention to create legal relation. Upon the implication of the following elements, contract is divided into two categories called express and implied terms. They are then classified into the following terms; conditions, warranties and innominate. To protect the party in breach of contract, exemption clauses are thus created to exclude or reduce the liability payable. However, the validity and effectiveness of the clause depends on the following factors; incorporation, construction, presence of unusual factors and neutralization by UCTA. Also, sales of goods act are created and implied to protect either the buyer or seller depending on the situation in contracts. A contract could also be void or voidable due to vitiating factors which makes the contract invalid. The vitiating factors include incapacity and misrepresentation. Discharge of contracts is also possible when either of the following elements, namely, by performance and frustration occurs. Also, when a party breaches a contract, they are given two categories of remedies by the court, the common law remedies and equitable remedies.
Teacher's comments: most of the students missed out the Part in red.
(1) Issue
Ravi is unhappy that Microhard’s staff left 2 hours upon reaching the site without providing any solutions to his software issues.
(1) Applicable law
An innominate term is a term between a condition and a warranty. It would accord to the gravity of the breach to determine if the contract can be terminated when there is a breach happens.
The innocent party can terminate the contract and sue for damages when there is a breach in a serious way, same as a breach of condition. On the other hand, the innocent party can only sue for damages in a breach of trivial way, just like a breach of warranty.
The innominate term is formed in the case of Hong Kong Fir Shipping v Kawasaki KK [1962] as it covered both trivial and serious matters, such as a missing nail or the whole ship being unseaworthy. After the repairs, the court held he can only sue for damages and cannot terminate the contract as the Plaintiff still had 80% of the charter available (see also Sports Connection Private Limited v Deuter Sports [2009]).
In Schuler v Wickman Tools [1974], Wickman was failed to make some of the visits and the House of Lords held that it was only a breach of warranty, not a condition.
(ii) Applying fact to law
Teacher's comments:
Follow the logic below: most students except this one gave this answer as Condition, partially right. But this term is in fact an Inominate term because when the employee absconds it is not known at the time of contracting whether the company could have suffered a minor or major loss. But once the employee has absconded, we will know the what extent the damage is.
If it is a serious one, you have breach of condition-like effects , a minor one then warranty-like effects.
On the first occasion, the fact that the appointed MicroHard’s employee was incompetent and failed to provide solutions to Ravi’s software issues when attending the service call and also left without finishing the job assigned. This can be claimed that MicroHard has breached the warranty of the contract term which was outlined in Schuler v Wickman Tools [1974].
However, it is arguable that there might be a breach of condition if Ravi can prove that this incidence has affected the business tremendously and has majorly breach of the natural of the contract in providing professional software support services.
(1) Conclusion
Microhard is liable to Ravi for the breach of the implied condition in the contract. Therefore, Ravi can discharge the contract and also claim damages from Microhard.
(2) Issue
Ravi is unhappy that Microhard’s employees arrive 1 hour after service call on 3 occasions.
(2) Applicable law
Warranty is a term referring to secondary obligation of less importance. When breached, it would not go to the extent of affecting the root of the contract. When a breach of warranties occurs, the affected party is unable to discharge the contract. However, the affected party is able to claim damages (See Bettini v Gye (1876)).
(2) Applying facts to law
In this case, one of the terms in the contract is that Microhard’s employees arrive within 30 minutes upon receiving a service call from Ravi.
As Microhard’s employees arrive late on 3 occasions, they have breached the term (2) of the contract. However, this breach does not affect the root of the contract as it is of less importance and thus is a warranties term.
(2) Conclusion
Microhard is liable to Ravi for the breach of term (2) of the contract. Ravi is able to claim damages from Microhard but unable to discharge the contract due to its nature as being a secondary term.
(3) Issue
Ravi is unhappy that Microhard’s employee causes a program to freeze and only fixed after 5 hours.
(3) Applicable law
Innominate is a term whereby it is difficult to fit into either condition or warranty. Due to its complicated nature, discharge of contract is dependent on the severity of cases. If the consequences of cases are trivial, remedy in damage should suffice. If the consequences of the cases are severe, the injured party should be entitled to treat the contract as discharged. Therefore, this term focus on the consequences of the breach and not the nature of term breached (See Hongkong Fir Shipping Co Ltd v Kawasaki Kaisen Kaisha Ltd (1962)).
Unfair Contract Terms Act (UCTA) is a term that mainly focused on protecting consumers entering into business transactions. Exemption clauses that seem to be part of a contract might thus be neutralized by UCTA.
UCTA S2(2) stated that an exemption clause can exclude liability for other loss or damage due to negligence, but only if it is fair and reasonable to do so.
(3) Applying facts to law
This issue would be classified under the innominate term due to its complicated nature. Therefore, the capability to void or affirm the contract is dependent on the severity of the issue caused by the program freeze (See The Hansa Nord (1976)).
At the first glance, Microhard may be protected by the exemption clause. However, by looking at UTCA S2 (2), they cannot depend on the clause to protect them as it isn’t reasonable for Microhard to create such a big blunder, considering the fact that they should be experts in this aspect. Furthermore, the blunder is caused by negligence of their employee. (See Phillips Products Ltd v Hyland and Hamstead Plant Hire Co Ltd (1984)).
Teacher's comments: Most students missed out UCTA s 2(2)
(3) Conclusion
Since Microhard cannot rely on the exemption to protect them, they are therefore liable to Ravi. Ravi may have the choice to discharge the contract, claim damages, or both, depending on the severity of the consequences.
Part B
Primary Justice Project which introduced by Chief Justice, Sundaresh Menon is aim to help to settle down disputes and avoid going to court. However this project is not a law yet instead it is a proposal because to make it to be a law, it needs to introduce in Parliament as a draft called Bill where it is debated. If Bill gets passed in Parliament, then it is presented to the President for his assent to become an Act of Parliament. So, Ravi cannot use it.
Most students missed out the above
There are three methods of resolving civil disputes to think about. They are Litigation, mediation and arbitration. Ravi wants to resolve his dispute out of court so Ravi can use Alternative Dispute Resolution (ADR) which includes mediation and arbitration.
Mediation is best described as a voluntary and confidential process in which the parties are guided in their decision-making process by a neutral third party, the mediator who achieves a settlement by negotiating the two parties in dispute. Mediation also can be faster, cheaper and does not involve courts instead settlement agreement are binding by virtue of the law of contract. If both parties cannot reach an agreement then may have to solve through form of dispute resolution such as litigation (take more time and money) and under Arbitration.
On the other hand, Arbitration is where both parties come together and agree to follow the decision of the arbitrator who is normally a judge. Moreover, arbitration is similar to solving disputes in a court style but less formality and use to resolve both international and domestic problems. There is finality in Arbitration. Arbitration method is relatively fast and dispute usually heard 3 months or resolved within 6 months. However, it is slower and more expensive than mediation.
Ravi can either choose mediation or arbitration to solve his dispute. If Ravi chooses mediation method then he can keep this dispute confidential while arbitration will be present to public. Moreover, keeping confidential to public, business reputation will not be affected. Mediation method not only can help Ravi to keep this problem private but also saving money and time. Mediation can results in an agreement while Arbitration results in an award. Furthermore, mediation will contribute to a win-win outcome but arbitration contributes to a win- lose solution. So from my point of view, Ravi should choose mediation to resolve his dispute out of court with MicroHard.
Total words: (1277)
References
Textbook
Benny S Tabalujan & Valerie Du Toit-Low, Singapore business law, 5thedition
Cases
The Moorcock (1889)
Benny S Tabalujan & Valerie Du Toit-Low, Singapore business law, 5thedition, page 119
Hutton v Warren (1836)
The Mihalis Angelos (1971)
Bettini v Gye (1876)
Benny S Tabalujan & Valerie Du Toit-Low, Singapore business law, 5thedition, page 121
HongKong Fir Shipping Co Ltd v Kawasaki Kaisen Kaisha Ltd (1962)
Benny S Tabalujan & Valerie Du Toit-Low, Singapore business law, 5thedition, page 123
The Hansa Nord (1976)
Phillips Products Ltd v Hyland and Hamstead Plant Hire Co Ltd (1984)
