LAW OF URBAN FARM PRODUCTS

QUESTION

the maximum word 1500which count.Footnotes are included in the word count but the bibliography is outside the word count.

The Theassignment itself should be in double line spacing to allow for the markers’ comments in Arial font size 10.

Referencing will be in oxford style. Case citation needed in footnote.

Contract written coursework for uploading.

You have received the following email from the senior partner at BooJem& Co for who you are undertaking a summer placement:

Our client Urban Farm Projects Ltd is opening new premises just outside of Hatfield. I would like you to have a go at drafting an exclusion clause for them to use with all the visitors to the attraction, to be marketed as Villafarm.

Urban Farm Products Ltd. is concerned to exclude their liability as regards damage or loss to personal belongings during any visit. They are also concerned that they will be protected against claims where visitors do not abide by the rules as to contact with the animals and are injured.

Bookings can be made online but most contracts are formed simply by visitors arriving at the venue, parking up and buying a ticket at the entrance.

Please could you draft the requisite two clauses together with an explanatory note, supported by the relevant authorities as to the potential pitfalls to be avoided in ensuring the clauses’ incorporation into the contract with visitor’s to the attraction and the enforceability of the clauses under both the Unfair Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999.

SOLUTION

Contract clause No.1: Urban Farms Products Ltd will not be responsible for any loss or damage occurring to the visitor in relation to:

(i)    Any Personal belonging brought in by the visitor to the attraction.

(ii)  Any belonging brought into the attraction gets lost due to negligence of the visitor.

2.  The specifications given in Clause 1 are subjected to:

(i) If the specified belongings gets damaged or lost due to the fault of the authorities in the attraction then a reasonable compensation shall be given to the visitor subjected to:

(a) Valuation of the belonging as assessed by the company.

(b) After looking at all the deductions and depreciations as assessed by the company depending upon the life of the belonging.

3. No claims on behalf of the visitor shall be entertained by the company if the belonging is brought to the attraction without taking prior permission and notice to the authorities of the attraction.

Contract Clause No.2: Urban farms herein hold no responsibility of the visitor if some mishap or injury happens in the course of their visit subjected to:

(i)    If the visitor is injured coming in contact with animals which is strictly prohibited under the rules of the attraction.

(ii)  Visitor is injured by negligence wholly caused by him by trying to disturb animals by having coming in contact with them.

Explanatory Note: As we see here that under both the Unfair Terms in Contract Act and the Unfair Terms in Consumer Contracts Regulations the clause has to be tested. As we see both the legislations were aimed to provide consumer protection and this clause has to pass the test of reasonableness as engrafted under Section 11 of the Unfair Terms in Contracts Act, 1977 the section specifically says that no unfair terms in contract can be inserted. Moreover it specifically also gives the discretion to the judges as to decide the reasonableness further it says that the party claiming the reasonableness shall have to prove that the contract term is reasonable[1].

Further the clause also has to satisfy the requirements of regulation 5 and 6 which specifically discusses about the unfair terms and its assessments. As we see these two regulations specifically prohibits the unfair terms to be included in the contract. It regards a term that is against the good faith as a term which is unfair[2].  As the basic purpose of both the regulations rests upon a fair dealing between the contracting parties thus it is always to be seen that the contract term does not prejudice the interest of any of the parties[3]. The legislations pose a very challenging role for the people drafting consumer contracts as it ensures that the interest of the consumer is always protected thus the person drafting has to see that the clauses in the contract satisfies the provisions of the regulations as well as the interests of the other party is also not prejudiced.

As we have seen the judicial responses also supports the view of fair trading under the legislations and anything that is contrary to the principle of good faith can be enforced against the guilty party. As we see in the case of Director General of Fair Trading v First National Bank plc[4] it was held that the requirement of good faith embodies a general principle of open and fair dealing and it cannot be breached. In assessing fairness of a term it has always to be assessed that the term is not drafted so widely that can cause detriment to the consumer or should not have an unfair effect upon the contract.

Further the legislations also certify that the standard terms in the contract must be in a very plain and simple language so that the parties do not have any difficulty in enforcing the terms. As we have seen in the case of FPD Savills Ltd[5] where the payment terms were unclear the court after enforcing the legislations told to bring the payment terms of the contract together in a clear and plain language to remove any ambiguity.

The courts have always stressed upon to bring in the principle of fairness which consist of good faith in implementing the contracts under these legislations as we see in the case of First National Bank  Lord Bingham has described the concept of good faith as “The requirement is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial morality and practice”[6]

Also in the case of Lacey’s Footwear v Bowler International[7] LJ Brooke provided “It would be an affront to good faith to allow a party to rely on a “small print” term of a contract which expressly removed the whole of the benefit of the contract from the other party, with no diminution of the consideration which flowed from that party when it thought it was acquiring the benefit in question”.

Thus the principle strikes a balance between the parties so that no party to the contract can take any unfair advantage upon the other based on the contractual term.

Moreover courts have also stressed upon the incorporating the terms of the contract in a very plain and simple language so that the consumer can understand and enforce the terms in a very usable way. As we see in the case of Exeter Friendly Society[8] it was insisted by the OFT that the contract should incorporate warning clause as to which of the band of hospitals are covered under the health insurance so that there should be no ambiguity.

Also we see that in case of Singlepoint (4U) Ltd[9] the contract was ordered to be printed in a larger font as the contract was very difficult to read so it would have caused great difficulty for the consumer to enforce the terms without understanding and reading it fully.

As we see the 1^st contract clause it specifically insists upon information to the authorities of any belonging that is being taken inside the attraction thus if gets lost the authorities are willing to compensate upon it. But the standard terms are very clear upon the negligence caused by the visitor and belonging gets lost thus the company excludes itself from the liability in that case as the company is not responsible for the negligence of the visitor. Also we see that the fairness test is very much satisfied on the clause as the company does include the compensation term if the loss is caused by the fault of the company thus following the legislations thus the term cannot be regarded as an unfair term.

Now we see in the 2^nd clause discusses about the personal injury to the visitor in course of his visit. As we see the legislation provides no respite for the company to escape the complete liability in the case but as we see the clause has been drafted regarding liability in case the negligence is caused by the consumer resulting in the injury. As there are specified rules of the attraction and if acting contrary to the rules the injury is caused then the company restricts itself from the liability. The terms of the clause is very clear in relation to that if the injury is a result of action contrary to the rules which should be followed in any circumstance. Acting contrary to the rules will always cause harm and injury to the consumer. As the company does not take the responsibility of wrong done by others it can control only its own actions thus there is no way the company can restrict the action of others which is not upon the company to do. The company has only duty and responsibility to protect the visitors which is being done by it and due to the negligence of the visitor some personal injury is caused it is not upon the company to bear the liability. It is very clearly explained that the animals are not be disturbed and touched and acting against it would be considered a wrong on the part of the consumer thus if the company restricts itself from the liability in these cases which cannot be considered as an unfair term under the legislations.