Law History contract
... factor in any objective analysis of the facts. In this case Paul had first hand knowledge of exclusions clauses being commonplace in the transport industry and that Paul had entered previous agreements with such exclusions clauses . If the parties execute a written memorandum of the contract terms which does not include a pre-contractual statement later relied upon it will be difficult to then argue that the statement was of such importance that it should be interpreted as a term of the contract. However or a statement is made and that statement is later recorded in an executed document, it is likely to be seen to be a reliable item of evidence . The ‘parole evidence rule’ is also on occasions described as the ‘four corners’ rule. The principal is that the court should rely upon only those terms contained within the corners of the executed document. a) In certain circumstances contracting parties wish to control the extent to which they may be liable while in the performance of that contract. This is often achieved by the addition of an exclusion clause. The approach historically taken by courts toward exclusions clauses has been one of hostility. There are three cases that may provide some guidance as to the relationship between contract, negligence and exclusion clauses generally. (i) The Balmain ferry case, where the High Court held that a Mr. Robertson should have been aware of the conditions (exclusion clauses) from his previous use of the ferry. (ii) Sydney City Council v West (1965) A client parked a car at a council carpark. On the back of the ticket he was issued with was a clause stating, the council would not be libel for any loss or damage no matter how it occurred. The High Court held that the exclusion clause could exclude liability for all negligent acts or omissions which could be reasonably be said to be anticipated under the contract. It may also be beneficial to an analysis to consider if the alleged breach was a ‘fundamental breach’ as discussed by Lord Wilberforce in Photo Productions v Securicor Transport. This concept was qualified Council of the City of Sydney v West (1965) application of exclusion clauses are dependant on the construction of the agreement. The issue becomes whether the construction of the contract qualifies the ice-cream as the ‘object’ of the contract and should therefore the purpose rule apply. The application of the exclusion clause should not defeat the main purpose of the contract. The agreement is headed ‘Transport Contract’ and it could there fore be arguer that the transport and not the goods being transported are the object of the contract. (i) In Thomas Nationwide Transport v May & Baker , TNT was unable t rely upon the exclusion clause because it had departed from the terms of the contract. More importantly, the appeal failed because the clause being relied upon was non- specific and did not state ‘negligence’ as being covered by the exemption clause. (ii) In Canada SS Lines Ltd v R the Privy Council determined a rule governing exclusio...