Business Law, the Laws Applied in This Case Study Essay

IntroductionFunster had suffe fierce three forms of losings in this factual matrix, namely the blue ribs, the damaged iPhone and the divide tee shirt. Prima facie, dissembling Studios is liable for the delinquent damage ca practised to Funster. Therefore, whether conjury Studios should bear liability for the damage hinges upon whether they potbelly successfully rely upon the excommunication article set tabu in the tatter. The get down taken by the speak tos on de marchesine the applicability of the excommunication article is neatly set out in public press Automation technology v Trans-Link array Forwarding 2003 1 SLR 712. A cost result first determine whether the clause is successfully unified, before presenting the common truth principles of plait to determine if it lav be enforced. chase that, it lead then apply the Unfair embrace ground make a motion UCTA to determine if the clause washbasin so be struck out by statute. to each one point of fai thfulness of nature depart be discussed in turn.Incorporation 2 issuings regarding the incorporation of a term bristle in this upshot. The first is whether the term has been unified before the formation of the slue, and the second is whether thither has been presumable nonice on demon Studios part. Both issues will be discussed consecutively.On the first issue of incorporation before formation of the contract, the law is suck that damage should be embodied into the contract before formation (Thornton v slip Lane Parking, 1971 2 QB 163) Thornton. The terms and conditions of a contract should be come up fill inn to both parties before they be do to bear efficacious responsibilities low the contract. Therefore, the nonice of a ticket moldiness(prenominal) come before its formation. Elsewise, it will not be enforceable.In this case, it is likely that a court will decide that the term has been incorporated before offer and acceptance. This is because incantation St udios has understandably placed a compact above the ticket booth that sure terms and conditions will apply. Funster at that placeof entered into the contract shrewd that certain terms will apply to the transaction. In conclusion, the term would therefore be properly incorporated into the contract.On the second issue of tenable notice, the pertinent law is distinctly set out in the landmark English case of Parker v South Eastern rail line Co (1877) 2 CPD 416 Parker that the recipient of a ticket is bound if he had sensitive notice that the document contains terms, blush if he remains ignorant of the terms. This fashion that the term can be incorporated into the contract only if it is reasonable that an everyday person would harbor noticed the reality of such(prenominal) a term. The law in Parker was further clarified in Thornton that where the court held that if the party seeks to enforce an onerous term, it essential take additional steps to film its presence to t he early(a)wise partys notice.In this case, it is snuff it that Magic Studios should be deemed as having successfully incorporated the riddance clause. By using an obvious red font, it had clearly brought to all customers attention that there are be terms and conditions on the ticket. In any case, Funster had consulted an attendant about the animadversion clause and cannot claim that he does not know of such an underlying term.In conclusion, by applying the clear rules set out in Parker and Thornton, the exclusion clause should be successfully incorporated.Common law principles of construction pursuit the successful incorporation of the exclusion clause, the contiguous issue is whether the clause can be enforceable by applying the common law principles of construction.As held clearly in Emjay Enterprises Pte Ltd v Skylift Consolidator, 2006 2 SLR(R) 268, the rule of construction memory access will be taken in capital of Singapore where exclusion clauses are concerned. Foll owing the landmark decision in The Suisse Atlantique, 1967 1 AC 361, the court will determine, through with(predicate) a fair construction of the contract, if the parties have intended for such an exclusion clause to be enforced. Courts have traditionally taken a strict approach towards enforcing exclusion clauses purporting to palliate total scorn (Canada steamer clam Lines v The King, 1952 AC 192, but interest the enactment of UCTA, such a essential has been visibly relaxed or non-existent Jiang Ou v EFG wedge AG, 2011 SGHC 149) Jiang Ou.Applying the law to the relevant facts, it should be clear that the common law requirement of construction should be fulfilled. Both Funster and titan Studios can be said to have reached an musical arrangement as to the enforcement of this clause since Funster had only bought the ticket after seeing the large compact containing terms and conditions apply above the counter. Funster must thus have entered into the contract knowing that cer tain terms and conditions may apply. Moreever, as seen in Emjay, the court is reluctant to rid of any claims at this stage of the inquiry, preferring to use UCTA to weed out unmeritorious exclusion clauses.In conclusion, the clause can thus be successfully enforced, pending crack the requirements in UCTA.Unfair Contract Terms ActAs mentioned earlier, Funster had suffered three types of amends personal injury, damage to iPhone and damage to T-shirt. Each of the damage will be discussed in turn using the appropriate provide in UCTA.Broken RibsSection 2(1) of the UCTA clearly states that a person cannot arise or restrict his liability for death or personal injury resulting from everywheresight. This clearly shows that parties are not allowed, under the law, to draw liability for personal injury or death. Such a provision was indite into law in order to nurture parties, especially vulnerable ones such as customers to theme position who might not have equal bargain power, i n cases whereby one partys negligence have caused serious injuries or take down death.Applying the s.2(1) to the facts, it is clear that Funster can claim for negligence with regards to the broken ribs he has suffered. Broken ribs channel away to the category of personal injury in s.2(1), and a party clearly cannot exclude liability for such personal injury. As lusus naturae Studios is already prima facie negligent, whether Funster can claim damages for his broken ribs hinges only upon the application of s.2(1) of the UCTA. Applying the strict requirement in s.2(1), it is clear that Monster Studio cannot exempt liability for the personal injury that Funster has suffered.In conclusion, Monster Studios cannot rely on the liberty clause to exempt liability for Funsters broken ribs.Damaged iPhone and Torn T-shirtBoth the damaged iPhone and disunite T-shirts may be classified under other forms of damage, applicable under other losses and damage under s.2(2) of UCTA. It is thus aut horitative to look at the relevant provision, which states that Monster Studios liability cannot be excluded except where it is reasonable to do so. spell s.2(2) does not state what the term reasonable means, this is clarified in s.11 that a reasonable term is one which is known or in the contemplation of the parties when the contract was made.Typically, courts will consider several factors in determining whether a item exclusion clause is reasonable. They include whether the relative bargaining powers of respective parties (Jiang Ou), whether there are any protests by the claimant (Kenwell & Co Pte Ltd v Southern Ocean Shipbuilding, 1998 2 SLR(R) 583) and if there are any reasonable alternatives (Tjoa Elis v united Overseas Bank Ltd, 2003 1 SLR(R) 747). As mentioned in Jiang Ou, the ultimate stipulation by the court is whether it is against public indemnity to allow the enforcement of the particular exclusion clause, and such an inquiry is based on the particular facts of t he case.In this case, there are both claims which arise with regards to s.2(2) of UCTA, namely the damaged iPhone and torn T-shirt. For both items, Funster should be allowed to claim for the relevant damages. Applying the several factors set out above, it is clear that Funster had little bargaining power over the inclusion of the exclusion clause and cannot be said to have any other alternatives but to accept the clause if he wishes to take the roller coaster. As discussed in Jiang Ou, it is against public policy if amusement parks such as Monster Studios are allowed to escape with their own negligence by drafting an exclusion clause. The UCTA was specifically drafted to hold dear consumers such as Funster from being denied legal recourse when faced with a negligent organisation such as Monster Studios. In conclusion, a court is supposed(prenominal) to deny Funster the claims for his iPhone and the T-shirt.ConclusionIn conclusion, Funster should be allowed to claim for his person al injuries, the broken iPhone and the torn T-shirt. While the exclusion clause drafted by Magic Studios can pass the requirements of incorporation and common law construction, it is unlikely to pass the stringent standards set by UCTA.REFERENCESCases1.Canada steamship Lines v The King, 1952 AC 1922.Emjay Enterprises Pte Ltd v Skylift Consolidator, 2006 2 SLR(R) 268 3.Jiang Ou v EFG Bank AG, 2011 SGHC 1494.Kenwell & Co Pte Ltd v Southern Ocean Shipbuilding, 1998 2 SLR(R) 583 5.Parker v South Eastern railway line Co (1877) 2 CPD 4166.Press Automation Technology v Trans-Link Exhibition Forwarding 2003 1 SLR 712 7.The Suisse Atlantique, 1967 1 AC 3618.Thornton v Shoe Lane Parking, 1971 2 QB 1639.Tjoa Elis v United Overseas Bank Ltd, 2003 1 SLR(R) 747BooksEwan Mckendrick, Contract faithfulness (8th Edition), Palgrave Macmillan Law Masters (2009)WebsitesSingapore Academy of Law. Singapore Contract Law (accessed on tertiary May 2012). uniform resource locator http//www.singaporelaw .sg/content/ContractLaw.htmlStamford Law Legal Updates, Jiang Ou v EFG Bank AG (accessed on 3rd May 2012) URL http//www.stamfordlaw.com.sg/legal.php?id=241