Comm 7012 : Commercial And Assessment Answers

(a) Whether he can recover $500 in relation to the missing jacket.
(b) Whether he has any action himself and for his clients for the loss of enjoyment of the evening and in particular the shortened time that food and drinks were served to them.

(a) Issue

Whether Scott has the right to recover $500 for the loss suffered by him due to the missing jacket?

Rule

The contractual parties are bound by the terms of the contract, and they have the right to recover any loss which they suffered due to violation of such terms. After forming a valid contract, the parties are obligated under its terms. However, this obligation can be terminated by the party in case an exclusion clause is included in the contract. The exclusion clause assists the parties in cancelling their liability which arises due to breach of the contractual terms. This clause enables the parties to exclude their liability and free themselves from the obligations for payment of damages in case the terms of the contract are violated. The parties have to comply with the general rule while including this clause in the contract. It provides that this term must be brought into the attention of the party. The court provided in Olley v Marlborough Court case that the term should be brought into the attention before the contractual obligations are created or while they are formed. The exclusion clause which is not brought into the attention of the party within appropriate time is not considered as valid based on which the party did not have the right to terminate the liability. However, this rule did not apply in case a written contract is formed between the parties, and the term is included in such contract. In L’Estrange v Graucob case, the court provided that the fact that the party did not read the term is regardless in case a written contract is formed between the parties.

Moreover, the parties have to ensure that the document which contains the exclusion clause by a part of the contractual documentation. The exclusion clause cannot be included by the parties into a mere receipt which is given to the party for acknowledging the payment. The court provided this rule in the case of Chapelton v Barry Urban District Council case. In this case, a desk chair was hired by the claimant, and a ticket was issued by the defendant for such desk. After obtaining the ticket, the claimant put it in her pocket without looking at the same. The ticket contained an exclusion clause which provided that the defendant will not be held liable for any personal injury which is suffered by the party caused due to the use of the desk chair. The claimant suffered an injury after using the chair, and a suit was filed to recover the damages from the injury suffered by the claimant. The court provided that the ticket was just a receipt for the acknowledgement of the payment received and it cannot be considered as a valid contract. Since the defendant did not bring the term into the attention of the party, it is not valid; hence the claimant has the right to recover the damages for the loss suffered by him.

Application

In the given case study, the Federation Arena provides a receipt to people for acknowledging that they have received their payment for the umbrellas and costs. The receipt contracts an exclusion clause which provides that the Federation Arena will only be held liable for $50 in case a personal injury or loss is suffered by the customers due to act or omission of its employees. Scott puts his jacket into the cloakroom and gets a receipt for the same. He did not read the term written on the receipt. The coat is lost due to the negligence of the employee of Federation Arena who failed to lock the cloakroom. As discussed in the judgement of Chapelton v Barry Urban District Council case, the parties have to include the exclusion clause in contractual documentation. An exclusion clause is not considered as valid which is written on a mere receipt. In this case, the clause was written on a mere receipt, and it was not brought into the attention of Scott. Thus, the exclusion clause is not valid, and the liability of the Federation Arena is not limited to $50. Scott can recover the loss of $500 which is suffered by him due to the omission of the employee of the arena.

Conclusion:

In conclusion, Scott has the right to recover the loss of $500 from the Federation Arena since the exclusion clause included in the receipt is not valid.

(b) Issue

Whether Scott has any remedy available for himself and his clients against the Federation Arena for the loss of enjoyment which they suffered?

Rule

The parties of a contract are bound by the terms which are included in the contract. The contractual parties have to comply with these terms in order to avoid any legal consequences which they suffer due to violation of the contractual terms. The parties who suffer damage or loss due to violation of the contractual terms have the right to hold the breaching party liable for their loss. The aggrieved party can claim remedies which are available in case the contractual terms are violated. The remedies include payment of damages, injunctions, specific performance, rescission, and repudiation. The remedies are issued by the court based on the circumstances of the case to ensure that the aggrieved party is able to compensate the loss suffered. The payment of the damages is the most common remedy which is given by the party in order to compensate the loss suffered by the aggrieved party.

The contractual party has the right to demand damages in case any discomfort and disappointment is caused due to the actions of the defendant where enjoyment is the key part of the bargain of the contract. A good example of these contracts includes entertainment, meal out or holidays. In Jarvis v Swan Tours case, a trip was booked by the claimant and the brochure of the trip provided that the holiday includes various activities include house parties, afternoon tea, and cake, ski-runs, English speaking hotel owner and others. Many of these facilities were not present or were not as described in the brochure. The trial judgement awarded £30 to the claimant by providing that he had provided the half of what he paid for. The Court of Appeal rejected his judgement by providing that the contract was formed for specific purpose of enjoyment and entertainment, thus, the party has the right to receive damages.

Another good example was given in Jackson v Horizon Holidays case in which a holiday was booked by the claimant for himself and his family. The hotel in which they stayed in turned out to be unsatisfactory due to various reasons related to provision of services and cleanliness. It was held by the trial court that Mr Jackson has the right to make a claim for damages; however, his family cannot since they were not part of the contract. An appeal was filed in the Court of Appeal in which the court provided that Mr Jackson and his family is able to recover the damages for disappointment and discomfort which they suffered because they were affected by the violation of the contract as well. The judgement given by the court, in this case, contradicts with the provision given in the case of Beswick v Beswick in which the court provided the rule of privity of the contract. This rule provides that the party which is not part of the contract did not have the right to hold the contractual parties liable for the loss suffered by them by filing a suit against them.

Application

In the given case study, Scott and his clients went to the Federation Arena in order to watch the game and have food and drinks at the place. Scott can file a suit against the arena based on discomfort and disappointment faced by him and his clients because they were not able to enjoy the game, and they only get food and drinks for a short period of time. As discussed in Jarvis v Swan Tours case, they are liable for the whole amount even if they get half of what they promised because the contract was formed for a specific purpose. Moreover, Scott can claim to recover the damages along with his clients since they were affected by the breach as well as discussed in Jackson v Horizon Holidays case. However, Scott and his clients will not be able to succeed in this claim because the reason for not complying with the contractual terms was to ensure the safety of people. Scott and his clients would have faced safety concerns if the arena continued to provide them food and drinks. Also, the arena agreed to give them a full refund, thus, Scott cannot claim any other remedy against them.

Conclusion:

In conclusion, Scott and his clients cannot recover damages for the discomfort or disappointment from the Federation Arena since the actions were taken for their safety and the full refund is given as well.

Bibliography:

Howells G and Weatherill S, Consumer protection law (Routledge, 2017).

McKendrick E, Contract law: text, cases, and materials (Oxford University Press, 2014).

Monaghan C, Beginning Business Law (Routledge, 2015).

Russell CA, Opinion Writing in Contract Law (Routledge, 2012).

Samuel G, Epistemology and method in law (Routledge, 2016).

Turner C, Contract law (Routledge, 2013).

Beswick v Beswick (1968) AC 88

Chapelton v Barry Urban District Council [1940] 1 KB 532

Jackson v Horizon Holidays [1975] 1 WLR 1468

Jarvis v Swan Tours [1972] 3 WLR 954

L’Estrange v Graucob [1934] 2 KB 394

Olley v Marlborough Court [1941] 1 K.B. 532