Advice For Julian And Anna Essay Example
In the present essay, an attempt has been made to discuss the liability of a party regarding the statements that have been made in the brochure of such a party and if such statements can be treated as the terms and conditions of the contract that Julian and Anna had entered into with Bliss Island. It was mentioned in the brochure of Bliss Island that excellent diving was available there and at the same time, it was also mentioned that Bliss Island offered excellent food to its guests. There was also a picture of delicious cakes present alongside the reference to delicious food offered by Bliss Island.
However when Julianne and Anna came to Bliss Island, they saw that as a result of a tropical storm and algae boom, the diving was not that good. In the same way, the chef who had prepared the cakes shown in the brochure had left Bliss Island and he was replaced by a chef from Pakistan specializing in Indian food. At the same time, as a result of the negligence of the housemaid at Bliss Island, who left the room of Julian and Anna unlocked, their expensive jewelry and wallet were stolen from the room. However there is a notice present on the back of the door in their room which mentions that Bliss Island cannot be held responsible under tort or contract for the loss any item that has been left behind in the room by the guests.
It has been decided by the courts in a number of cases that the statements made by a party in the holiday brochure is a representation or warranty. Therefore, if the statement made by a party in the brochure has been breached, the other party can claim damages. In such cases, the court is not required to go into the question if the statement in question is a condition or warranty because in both the cases, the remedy of damages is available to the other party. However the main question that is involved in such cases deals with the amount of damages that can be awarded to the other party.
The leading case in this regard is that of Jarvis v Swans Tours Ltd. An appeal was preferred in this case by Mr. Jarvis because the county court decided that the difference present in the price of the holiday paid by the other party and what has been received by such a party can only be awarded as damages. Therefore, as the county court came to the conclusion that Mr. Jarvis had only received half of the services for which he had paid, half the price of the holiday paid by him should be awarded as damages. However, Mr. Jarvis was not satisfied with this decision and he preferred an appeal. In this appeal, it was stated by Lord Denning that while damages can be claimed for the cost of the holiday, at the same time, damages can also be claimed by such a party for the frustration, disappointment and distress that such a party has to face due to the breach of contract by the other party.
The position of law in such cases is that the limitation that was present earlier according to which, damages could not be claimed for the frustration and disappointment that a party has to suffer as a result of the breach of contract by the other party is no longer applicable. In this way, where there has been a breach of contract and the party has not received the services during the holiday that were promised by the other party, in such a case, the party can also claim damages for the mental distress that was caused by such breach. This is somewhat similar to the damages that can be recovered by a party that has suffered a mental shock under the law of tort. The contract for holiday can be included in such contracts as is the case with any other contract that has been concluded for providing entertainment and enjoyment. Therefore, if such a contract has been breached by a party, the other party can also claim damages for the distress, disappointment and frustration that the party has to suffer due to such breach of contract.
In such cases although there can be some difficulty for the court in assessing the amount of damages, but the task is not any more difficult than a similar evaluation that has to be made by the courts for the loss of amenity in cases where personal injury is involved. An example in this regard can be given of Jarvis v Swans Tours Ltd as in this case, Mr. Jarvis took a vacation for a fortnight only in a year. Therefore, in such a case it is natural that the party looks forward to have a good time during the holiday. But if there is any breach of terms and representations, in such a case the party should be compensated for the loss, including frustration and disappointment that such a party has to suffer. It is natural that the holidaymakers are looking to enjoy all the amenities that the other party has promised to them. Such a promise can be made in form of the statements present in the brochure or during conversation with the other party.
Another significant example in this regard is that of Baltic Shipping Company v Dillon. In this case, Mrs. Joan Dilllon had bought a cruise however the ship sank and she was injured and also lost some expensive items. The court stated that a party can claim damages for distress and disappointment caused by a breach of contract if such damages are the result of physical inconvenience that has been the result of such breach or if the contract has been created with a view to 'provide relaxation, enjoyment and freedom from molestation'.
This position of law finds its origin in the case titled Hobbs v London and South Western Railway Co. In this case the defendant did not transport the plaintiff all the way to his destination. As a result, the claimant was forced to walk for the rest of the 5 miles. In this case, the court stated that a claim can be made for this physical inconvenience caused by the defendant. However, in the later decisions, the damages that can be claimed have not been confined to the physical inconvenience suffered by the claimant and therefore, the damages for distress and disappointment can also be claimed.
In the present case, there is another issue that deals with the liability of Bliss Island regarding the theft of jewelry and wallet from Julian and Anna's room that was negligently left unlocked by the housemaid at Bliss Island. The legal position in such matters has been cleared by the court in the case of Olley v Marlborough Court Hotel.
The court had clearly stated in this case that a representation has been made after the contract between the parties had already been concluded, cannot be considered as a part of the contract or a term of the contract. As a result, in order to make a representation binding on the parties to the contract, it is important that the representation should be made when the parties are entering into the contract.
Applying the above discussed position of law to the facts of the present case, it appears that Bliss Island has made a representation in the form of the statement made in its brochure according to which, it offered best reef diving. Similarly, Bliss Island had also claimed that excellent food was provided to the guests and it had some of the best chefs in Australia. Along with this statement, a picture also showed some delicious looking cakes in the brochure. Similarly, during the telephone conversation, Sandra had also told Julian and Anna that the Island offered best reef diving throughout the year. At the same time, she also told that the guests were offered excellent food which they really love. However, Julian and Anna discovered that as a result of a tropical storm and also an algae boom, the diving was not that good. Similarly the chef of the Island who had prepared the delicious looking cakes had also left and the present chef was from Pakistan, specializing in Indian food.
Under these circumstances, it is clear that Julian and Anna suffered disappointment and distress due to the lack of amenities at Bliss Island. The services that were mentioned in the brochure were not provided to them.
In the same way, the notice present at the back of the door in their room, which excluded the liability of Bliss Island under contract and tort, cannot be considered as a term of the contract because this term has not been mentioned when the parties were entering into the contract.
Therefore it is clear in the present case that damages can be claimed by Julian and Anna from Bliss Island for the disappointment and distress suffered by them during their holiday. Similarly, Julian and Anna can also claim damages for the loss of their expensive jewelry and wallet. The reason is that the exclusion clause mentioned on the notice present behind the back of the door of the room is not a part of the contract or its term; therefore it is not binding and cannot be used by Bliss Island for excluding its liability for this loss.
Andy Gibson, Douglas Fraser,(2013) , Business Law, Pearson.
Harpwood, Dr.Vivienne, Modern Tort law, published by Cavendish Press, 2003
Holmes, Renee, Mental Distress Damages for Breach of Contract, Victoria University of Wellington Law Review, Vol.35, 2004, p688
Jarvis v Swans Tours Ltd  EWCA Civ 8
Bailey v Bullock  2 All ER 1167
Baltic Shipping Company v Dillon  1 Lloyd's Rep 579
Hobbs v London and South Western Railway Co (1875) LR 10 QB 111
Stedman v Swan's Tours (1951) 95 SJ 727 CA
Olley v Marlborough Court Hotel  1 KB 532