Exclusion Clause Essay

1223 words - 5 pages

These are elements that Thomas would need to prove in order for him to success claiming from Ultra Clean. Firstly, he would first have to find whether there's a contract between Ultra Clean and him. Secondly, he has to identify the breach and which exclusion clause covers the breach. Thirdly, he has to find that whether Ultra clean interpreted the exclusion clause strictly and whether it is clear enough to cover the breach.Exclusion clause would prevent Thomas from claiming the breach as the purpose of it is to deny liability. The effect of exclusion clause is shown in the case of Mas Airline v Malini, when there's a valid exclusion clause, the claimant will be bound by the exclusion clause and cannot claim from the breach. Three types of exclusion clause are identified in the case of Taveechai Marine which are limiting liability, particular breach and generally excluding liability. The first clause in the question is considered as generally excluding liability as it did not specify which type damage. Ultra clean guarantee that they will return the laundry within 3 days but for two weeks none of Thomas' laundry is returned. Also, they promised to collects dirty laundry from its customers twice weekly but it turned out to be five days a week. These two breaches are covered by second clause which is particular breach. The third and forth clauses are also considered as particular breach. There is no limiting liability in the terms.The first mechanism to identify the validity of exclusion clause is doctrine of incorporation. First rule is whether the term was contemporaneous with the contract determined the validity of exclusion clause. In the case of Olley v Marlborough, the clause is seen after the contract, therefore the exclusion clause is not valid. This is because some of the term may not agree by the signatory before entering into the contract as usually all the term must be shown for both parties, then only they can come into mutual agreement. If the term is not shown, then agreed and signed, this might violate contracts act section 10 that contract is only valid by free consent. Application in Malaysia case Doctor Wong Wai Ping v Woon Lim Sin applied the principle in Olley v Marlborough that the clause between doctor and hospital which stated that doctor would not be liable in negligence, did not bring to the attention of plaintiff, therefore the both the defendant could not rely on the clause. In the question, the terms are printed on the back of each Ultra clean collection slip, which each customer receives upon collection of the laundry by Ultraclean. Those terms perhaps brought to the attention of Thomas before Ultraclean proceed to do his Laundry.The second rule is whether reasonable steps were taken by Ultra Clean to bring the exclusion Clause to the attention of Thomas. The test was taken from the English case, Parker v South Eastern Rly Co that reasonable steps were taken by defendants to bring the attention of plantiff, therefore...

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