Good Legal Method Essay Example
However, at a closer look at the Act relied on we find the ruling was misguided and contrary to the Act involved. Regulation 5(1) clarifies unfair principle to emerge if the term causes a significant imbalance in the party’s rights and obligations coupled by the term being contrary to the good faith requirement. The term for reasons that stand obvious causes no imbalance in the rights; for a student to hold a party all they have to do is seek prior permission. Ms. Edwards did not provide any evidence or arguments to suggest that the permission is denied arbitrarily or unfairly. In the absence of evidence that might suggest that the University grants the permission to hold the parties without baselessly then the first term is clear. Ms. Edward knows very well that the university has sufficient grounds for denying her permission to hold an illegal drug themed party
In the light of term (b) the university imposes collective liability to the students if the culprit to account the damage is not discovered. Here the principle of good faith emerges distinctively. At first instance, the term does seem unfair; collective liability involves punishing even the students that are not guilty. However, when viewed and examined critically from a good faith perspective, it becomes apparent that the term is not unfair. The main reason the university has imposed such a term is to ensure that the students preserve the property and even protect it from further damage. Damage to property, universities or otherwise would increase exponentially in the absence of such a term. The students are more likely to take better care of the property and identify those who damage it if such a term is upheld. I would also refer the court to the complicated case of Director General of Fair Trading v First National Bank where a term that had seemed unfair was later identified to be in good faith as it guarded the bank against loss.
The trial judge also held that the term (c) was unfair on its unreasonableness in accordance with the Unfair Contracts Terms Act 1977. Ms. Edwards’s mp3 player has been broken in the hall of residence by the university’s negligence. To fully understand this term, we must seek the application of unreasonableness in the law. The UCTA is clear in the relevant section 2(2) that any exclusion for liability for negligence must meet the requirement of negligence. However, even schedule eleven does not sufficiently illustrate the meaning of reasonableness; as such, we resort to the common law for guidance. Stewart Gill v Horatio Myer Ltd held that the reasonableness is accessed at the time of the contract and laid the burden of proof of the party excluding the liability that in this case happens to be the University. However, it is the locus classicus case of Smith v Eric S Bush that best provides guidance and precedence to this case. Here Lord Griffith identified four points for consideration; equality of bargaining power. Ms. Edwards was willingly a guest of the halls of resident and cannot claim to have been induced or have led a weaker bargaining position when making the contract. The other points include; practicality of obtaining independent legal advice about the term, how difficult the task undertaken for which the liability is excluded and finally the practical repercussions to ruling the term unreasonable.
I shall answer the points in the context of this case. It was essentially impractical for the student to obtain independent legal advice for the term. Nonetheless, the task, that Ms. Edwards expects the university to undertake in taking responsibility for any damage occurring in the hall, is exceedingly expensive and very difficult. The imposition of such liability would divert funds away from the universities main purpose; providing education to paying damages for every student who can prove that the university was negligent. The practical consequences of the imposition have been examined in the previous statement and involve adding an extra and unnecessary burden on an institution of higher learning.
Bright, S., 2000. Winning the battle against unfair contract terms. Legal Studies, 3(20), pp. 331-352`.
Director General of Fair Trading v First National Bank Plc (2001) Supreme Court Reporter.
Gill (Stewart) Ltd v Myer (Horatio) & Co. Ltd (1992) High Court.
Lawson, R. G., 2011. Exclusion clauses and unfair contract terms. 3 ed. London: Sweet & Maxwell.
MacDonald, E., 2002. Scope and Fairness of the Unfair Terms in Consumer Contracts Regulations: Director General of Fair Trading v First National Bank. The Modern Law Review , 5(65), pp. 763-773.
Smith v Eric S Bush (1990) House of Lords.
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