Exclusion Clause

Essay by Christine1118College, UndergraduateB, November 2014

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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...