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    Tutorial Implied Terms and Ec

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    hani
    The summary provides advice on 3 questions posed: 1) Azmi can likely claim compensation from Le Mans as the exclusion clause trying to waive liability for personal injury is likely invalid and against public policy. 2) When interpreting exclusion clauses, courts apply rules of construction narrowly and will not enforce clauses that are ambiguous or against public policy such as excluding liability for death or personal injury. 3) For the first question about plates, Seema can argue the plates did not meet the implied condition of merchantable quality since 10 were a different color and they cracked easily. For the tiles, Ning Que cannot return them as the caveat emptor principle applies since he did not inspect them properly initially.

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    Tutorial Implied Terms and Ec

    Uploaded by

    hani
    221 views4 pages
    The summary provides advice on 3 questions posed: 1) Azmi can likely claim compensation from Le Mans as the exclusion clause trying to waive liability for personal injury is likely invalid and against public policy. 2) When interpreting exclusion clauses, courts apply rules of construction narrowly and will not enforce clauses that are ambiguous or against public policy such as excluding liability for death or personal injury. 3) For the first question about plates, Seema can argue the plates did not meet the implied condition of merchantable quality since 10 were a different color and they cracked easily. For the tiles, Ning Que cannot return them as the caveat emptor principle applies since he did not inspect them properly initially.

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    The summary provides advice on 3 questions posed: 1) Azmi can likely claim compensation from Le Mans as the exclusion clause trying to waive liability for personal injury is likely invalid and against public policy. 2) When interpreting exclusion clauses, courts apply rules of construction narrowly and will not enforce clauses that are ambiguous or against public policy such as excluding liability for death or personal injury. 3) For the first question about plates, Seema can argue the plates did not meet the implied condition of merchantable quality since 10 were a different color and they cracked easily. For the tiles, Ning Que cannot return them as the caveat emptor principle applies since he did not inspect them properly initially.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    221 views4 pages

    Tutorial Implied Terms and Ec

    Uploaded by

    hani
    The summary provides advice on 3 questions posed: 1) Azmi can likely claim compensation from Le Mans as the exclusion clause trying to waive liability for personal injury is likely invalid and against public policy. 2) When interpreting exclusion clauses, courts apply rules of construction narrowly and will not enforce clauses that are ambiguous or against public policy such as excluding liability for death or personal injury. 3) For the first question about plates, Seema can argue the plates did not meet the implied condition of merchantable quality since 10 were a different color and they cracked easily. For the tiles, Ning Que cannot return them as the caveat emptor principle applies since he did not inspect them properly initially.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 4

    WEEK 4 CONTRACT TUTO

    LAW 486 TUTORIAL


    TOPIC: IMPLIED TERMS AND EXCLUSION CLAUSE
    QUESTION 1
    Captain Hero Security (CHS) entered into an agreement with Milky Industrial dated 1
    February 2017 where it was agreed between the parties that the former was to provide
    services as specified under the schedule of service of the said agreement which stated
    as follows:
    Being the services of two unarmed guard for twelve hours and one-armed guard
    for eight hours a day at the rate of RM 3.50 per man hour.
    On 22 November 2017, there was a report made by Milky Industrial to CHS regarding an
    incident of break-in causing two main substations at the factory being severely damaged
    and copper wiring stolen from both sub-stations. Milky Industrial claimed that CHS had
    breached the contract by failing to conduct patrols in the vicinity of the factory and to
    observe for signs of criminal activities through patrolling and to immediately report any
    security incidents to the respondents. CHS in defence argued that the guards were not
    required under the terms of the agreement to conduct patrols as alleged by Milky
    Industrial.

    a) Advise CHS as to whether they had breached the contract.


    - CHS COULD BE DEFENDANT
    - WHETHER CHS BREACHED ANY TERMS IN THE CONTRACT.
    - EXPRESS TERM- THERE WAS NO EXPRESS TERM, THERE ARE NO BREACHED
    OF CONTRACT.
    - INVESTIGATE WHETHER THERE IS AN IMPLIED TERM, IMPOSSING AN
    OBLIGATION ON THE SECURITY GUARD TO CONDUCT PETROL ACTIVITY AS
    ALLASHED BY MILKY
    ISSUE- whether a term imposing obligation on the security guard on chs can be implied as the
    contract between chs and milky industrial.
    LAW- INTRO
    1. DEFINE- THERE ARE TWO TYPES
    -IMPLIED AND EXPRESS TERMS.
    -WHAT IS IMPLIED TERM
    2. THERE ARE THREE WAYS TERMS IMPLIED BY LAW, CUSTOM AND COURT.
    BASED ON THIS QUESTION THE ONLY RELEVENT WAY IS IMPLIED TERMS BY COURT.
    -THREE TEST TO BE FULFILLED IN IMPLIED TERMS BY COURT
    EXPLAIN ALL THREE TEST (INCLUDE 1 MALAYSIA CASE FOR EACH)
    I) BUSINESS EFFICACY
    II) OFFICOUS BYSTANDER
    III) A COMBINED TEST, THE POSITION IN MALAYSIA EXPLAINING THE FEDERAL
    COURT IN SABAH BUMI, AND HOW IT APPLIED THE COMBINED TEST.
    4. ESTABLISHING THE LEGAL PRINCIPLE. CONSEQUNECE / RELIEF
    THE CONSEQUENCE WHEN THE TERM IS IMPLIED, FAILURE OR NON COMPLIENCE
    OF ONE-PARTY LEADS TO BREACH OF CONTRACT.
    APPLICATION
    FOR THE TEST, APPLY STRAIGHT AWAY THE COMBINES TEST IN REFER TO THE
    CASE SABABUMI BCS WE LIVED IN MALAYSIA.
    UPON BEING SUGGESTED BY OB, WOULD IT MAKE SENSE IF SECURITY GUARD
    MST ALSO CONDUCT PETROL ACTIVITIES. CHS AND MILKY INDUSTRIAL WOULD
    RESPOND OH OF COURSE, OR OTHERWISE WE WOULD NOT HIRED CHS TO
    PROVIDE A SERVICES. AS THIS WILL IMPROVE THE BUSINESS EFFICACY IN A WAY
    OF TIGHTEN THE SECURITY AND ESURE THE SAFETY OF THE FACTORY BELONG
    TO MILKY INDUSTRY.
    THERE IS A HIGH POSIBILITY FOR THE COURT TO IMPLIED THE TERM IN THE
    CONTRACT INDICATING OF THE IMPOSSING THE PETROL ACTIVITIES.
    FAILURE TO COMPLY WITH THE IMPLIED TERMS IS LEAD FOR THE CFS TO BREACH
    THE CONTRACT.

    (15 marks)

    b) Would your answer be different if the term of the agreement read as follows:
    being the services of two unarmed static guard for twelve hours and one unarmed
    static guard for eight hours a day at the rate of RM 3.50 per man hour.
    - NO BREACHED AS IT IS STATED STATIC GUARD, THE IMPLIED TERM MUST NOT
    BE INCONSISTENT WITH THE EXPRESS TERM

    - PAROL EVIDENCE RULE, THE GOLDEN PRINCIPLE WHERE THE COURT WILL
    NOT IMPLIED THE TERM BCS THE IT WILL BE INCONSISTENT WITH THE
    EXPRESS TERM.
    - THEN APPLY.
    (5 marks)
    QUESTION 2
    On Monday, 26 June 2018, at about 7 p.m., Azmi attended to Le Mans’ racing track with his
    friend, Bella. Bella was an employee of a local radio station, 3MP, which had booked the Le
    Mans' racing track for a corporate promotion night for staff members, their families and friends.
    Azmi and Bella were members of the group attending the promotion night, to compete and have
    fun on the super-kart go-kart track. When Bella and himself arrived at the track, he was told to
    write his name in a form for him to be able to do a lap of the go-kart race. The four opening
    lines at the top of the form, in prominent, bold capitals, began with “TO HELP WITH OUR
    ADVERTISING …” were printed in red, the rest being in black.
    Both Azmi and Bella drove go-karts at the track on that night. However, Azmi engaged in an
    accident where in the course of a race his vehicle overturned, and he suffered a fracture of his
    arm. When Azmi asked for compensation for the injury suffered, Le Mans’ reminded Azmi, a
    paragraph in the form which reads; ‘Le Man shall not be held liable any special, indirect,
    consequential, incidental, or punitive damages for the injuries suffered.”
    Advise Azmi.
    (20 marks)

    QUESTION 3
    Heather owns a bakery business. She sells an assortment of cakes, biscuits and pastries and
    delivers them. Laila purchased two dozens of biscuits and a cake, shared them with friends.
    Tragically, Laila’s dog died after being fed the biscuits. An autopsy revealed there was a deadly
    poison present in the biscuits. Laila decides to sue Heather for negligence, but there is a clause
    in the contract which states “notwithstanding anything to the contrary, in no event will the
    measure of damages payable by the seller for any loss or damage incurred nor will the seller be
    liable for any death or personal injury or any indirect, incidental consequential exemplary
    punitive or special damages expressly claimed.”

    Discuss the applicable rules of construction in interpreting the validity of the above exclusion
    clause. Support your discussion with relevant legal authorities.

    (20marks)

    QUESTION 4
    a) i) Seema bought 20 pieces of ceramic plates after she was shown sample
    by Chee. 10 plates delivered to Seema were of the same color as sample but the
    other 10 were different.
    -SECTION 17.
    -SECTION 17 (II) (A)
    -SECTION 12(2)
    ii) Assuming, the 20 pieces delivered correspond with the sample, Seema used the
    plates for her son’s birthday party but when hot sauce was poured onto the
    plates, they cracked into pieces.
    Advise Seema.
    -SECTION 12 (2)

    b) Ning Que recently purchased some flooring tiles from a local builders’ merchant.
    However, it turned out that most of the tiles were cracked and unusable. Ning Que was
    in a hurry when he bought them and only had a quick look at them. He had not noticed
    that they were cracked. Ning Que now wishes to return the tiles.

    Advise Ning Que on his rights under the Sale of Goods Act 1957.

    - S16(1)
    - CAVEOT EMPTOR PRINCIPLE
    - THE BUYER MUST EXERCUSE CARE MEANS SHOULD INSPECT THE GOODS
    FIRST, IF NOT THE BUYER MUST BEAR THE CONSEQUENCES.
    - HE CANNOT RETURN THE TILES, AS IT DOES NOT FIT WITH THE
    MERCHANTABLE QUALITIES.

    c) Lili, a model, consulted a famous hair stylist for her opinion on the most suitable hair
    care product that would make her hair shiny and healthy. Three weeks after using the
    product supplied by the stylist, Lili suffered a serious problem of dandruff and hair loss.
    Lili now wishes to bring legal action against the hair stylist.

    Advise Lili.
    -S 16(1)
    -S 16 (1) (A)
    -DISCUSSED ALL THE 4 REQUIREMENTS
    -S 12 (2) COMES IN THE CONSEQUENCE

    d) Mr and Mrs Chong ordered carpet for their home from a carpet manufacturer. They
    specified that the carpet was to be a particular colour to match the interior décor of the
    house and the internal walls which were exposed brick. The carpet was supplied and
    there was no complaint as to its quality as carpet, but the colour of the carpet was
    different in patches and different from the colour specified. This was due to "pile
    reversal" or "watermarking"; a result of the manufacturing process.

    Must Mr and Mrs Chong accept the carpet?

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