Business Law, the Laws Applied in This Case Study Essay

IntroductionFunster had suffered three forms of losings in this existent matrix, namely the at sea ribs, the injuryd iPhone and the torn T-shirt. Prima facie, Magic Studios is apt(p) for the negligent damage caused to Funster. Therefore, whether Magic Studios should bear liability for the damage hinges upon whether they brush off self-madely rely upon the forcing away article set out in the book. The approach snapn by the judiciarys on determining the applicability of the projection article is neatly set out in Press mechanization Technology v Trans-Link Exhibition Forwarding 2003 1 SLR 712. A court of justice leave origin sic whether the clause is successfully embodied, onwards applying the mutual law principles of construction to determine if it basis be enforced. Following that, it allow then apply the Unfair claim Terms Act UCTA to determine if the clause can indeed be struck out by statute. Each point of law will be discussed in flip.internalizationTwo is sues regarding the incorporation of a term draw close in this case. The first is whether the term has been structured before the system of the iron out, and the s is whether there has been clean nonice on Monster Studios part. both issues will be discussed consecutively.On the first issue of incorporation before formation of the contract, the law is top out that legal injury should be coordinated into the contract before formation (Thornton v Shoe Lane Parking, 1971 2 QB 163) Thornton. The terms and conditions of a contract should be well known to both parties before they atomic number 18 made to bear legal responsibilities under the contract. Therefore, the notice of a ticket must 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 Magic Studios has intelligibly placed a feature above the ticket booth that certain terms and c onditions will apply. Funster gum olibanum entered into the contract knowing that certain terms will apply to the transaction. In conclusion, the term would therefrom be properly incorporated into the contract.On the second issue of fair notice, the applicable law is clearly set out in the border English case of Parker v South eastern Railway Co (1877) 2 CPD 416 Parker that the recipient of a ticket is bandaged if he had reasonable notice that the document contains terms, even if he remains ignorant of the terms. This means that the term can be incorporated into the contract only if it is reasonable that an ordinary person would view find the existence of such a term. The law in Parker was further delicate in Thornton that where the court held that if the company seeks to enforce an onerous term, it must recede additional steps to bring its presence to the other partys notice.In this case, it is clear that Magic Studios should be deemed as having successfully incorporated t he exclusion clause. By using an obvious red font, it had clearly brought to whatever customers attention that there are underlying terms and conditions on the ticket. In any case, Funster had consulted an attendant about the exclusion 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 constructionFollowing the successful incorporation of the exclusion clause, the next 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 approach will be taken in capital of Singapore where exclusion clauses are concerned. Following the landmark decision in The Suisse Atlantique, 1967 1 AC 361, the court will determine, by a fair construction of the contract, if t he parties have intended for such an exclusion clause to be enforced. Courts have traditionally taken a stern approach towards enforcing exclusion clauses purporting to resign total inattention (Canada Steamship Lines v The King, 1952 AC 192, but following the enactment of UCTA, such a compulsion has been visibly relaxed or non-existent Jiang Ou v EFG Bank AG, 2011 SGHC 149) Jiang Ou.Applying the law to the applicable facts, it should be clear that the common law requirement of construction should be fulfilled. Both Funster and Monster Studios can be said to have reached an agreement as to the enforcement of this clause since Funster had only bought the ticket after seeing the large mansion containing terms and conditions apply above the counter. Funster must thus have entered into the contract knowing that certain terms and conditions may apply. Moreever, as seen in Emjay, the court is reluctant to reject any claims at this stage of the inquiry, preferring to use UCTA to pot ful out unmeritorious exclusion clauses.In conclusion, the clause can thus be successfully enforced, pending passing the requirements in UCTA.Unfair Contract Terms ActAs mentioned earlier, Funster had suffered three types of damages personal injury, damage to iPhone and damage to T-shirt. Each of the damage will be discussed in turn using the appropriate provision in UCTA.Broken RibsSection 2(1) of the UCTA clearly states that a person cannot exclude or restrict his liability for wipeout or personal injury resulting from negligence. This clearly shows that parties are not allowed, under the law, to exclude liability for personal injury or death. much(prenominal) a provision was written into law in order to shelter parties, especially vulnerable ones such as customers to theme lay who occasion not have equal bargaining power, in cases whereby one partys negligence have caused serious injuries or even 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 give way to the category of personal injury in s.2(1), and a party clearly cannot exclude liability for such personal injury. As Monster Studios is already prima facie negligent, whether Funster can claim damages for his broken ribs hinges solely upon the use 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 exemption clause to exempt liability for Funsters broken ribs. alter iPhone and Torn T-shirtBoth the damaged iPhone and torn 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 important to look at the relevant provision, which states that Monster Studios liability cannot be excluded except where it is reasonable to do so. While s.2(2) does not state what the term reasonable means, this is exquisite 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(prenominal) factors in determining whether a particular exclusion clause is reasonable. They allow in 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 oversea Bank Ltd, 2003 1 SLR(R) 747). As mentioned in Jiang Ou, the ultimate consideration by the court is whether it is against open policy to allow the enforcement of the particular exclusion clause, and such an inquiry is found on the particular facts of the case.In this case, there are two 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 protect consumers such as Funster from being denied legal recourse when faced with a negligent musical arrangement such as Monster Studios. In conclusion, a court is unlikely to deny Funster the claims for his iPhone and the T-shirt.ConclusionIn conclusion, Funster should be allowed to claim for his personal 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 u nlikely to pass the rigorous 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 Co (1877) 2 CPD 4166.Press mechanization 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 Law (8th Edition), Palgrave Macmillan Law Masters (2009)WebsitesSingapore Academy of Law. Singapore Contract Law (accessed on 3rd whitethorn 2012). URL 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