Mooting assessment and problem solving

Mooting Assessment Problem Solving

The opening point of the case rests in the safety that a contract got signed between Ms. Edwards and the University of the East of England. The signing of the contract necessitated the reading, understanding and consenting to the laid down rules, guidelines and regulations by Ms. Edwards. Ms. Edward bound herself to the terms contained in the contract upon signing it in good faith. This constituted the common understanding that the terms were fair, both in the price charged and laid down regulations.

In a bid to by-pass the laid down procedures in attaining permission to hold a party within the premises, she looks into the terms of the contract and decides that they do not favor her intentions. However, since she had signed a contract, she resorts to seek a redress from the Courts. In her sense, Clause c) of the contract seems unfair, in that her MP3 had broken in the halls of residence. Information about the breaking of the MP3 does not get disclosed. This makes it difficult to ascertain, or dispute negligence on the part of the University.

According to the Unfair Contract Terms Act, UCTA, 1977, there exist a list of terms that get considered as Unfair Terms and, also, a test to determine whether certain terms qualify as Unfair1. The rise of reasonability of terms used in contracts arises. Contractual terms need to undergo consideration, under s.11 of UCTA, 1977, to gauge whether they constitutes a fair or unfair term in a contract. As such, and subject to s.11 of UCTA, 1977, part one of the tests gives room for the inclusion of Clause c) in the contract on the part of the Landlord (in this case, the University).

The reasonability of the clause arises from the fact that the Landlord does not, for Tenant (in this Case Ms. Edward) privacy, rights and freedoms, intend to take part in living the life of the tenant. Further, the Landlord gives room for the Tenant to take personal responsibility for all that happens within her premises, subject to the terms of the signed contract.

The age of the Tenant grants her the freedom to make mature decisions. Further, taking care of personal property without un-necessarily involving third parties, the landlord in this case, amounts to private life. Therefore, she should take personal responsibility for the breakage of her MP3. This decision gets reinforced by Part Two of s.11 of UCTA, 19772. The part stipulates that the two parties understood the existence of the clause in the contract that stipulated no liability on the part of the Tenant.

Part Three of s.11 of UCTA, 19773, lays down the time that the reasonability and fairness of a clause can undergo consideration as fair or unfair. In cases where a clause got deemed as fair during the time the contract got signed, cases of unreason ability does not arise. There occurs no consideration for affairs that occurred in hindsight, prior to, or after the signing of the contract. Therefore, the fairness of the clause got accepted at the time of signing the contract.

This nullifies the proposal that the Clause amounts to being unfair after the realization that it does not favor the tenant in her intended activities. it, also, gets to the fore that the Clause does not occur as an exemption Clause, rather, it occurs as a stand-alone clause that needs no further interpretation or explanation. Part Four of s.11 of UCTA, 19774, asserts that in cases where any term get defined as excluding liability, taking of responsibility lies on the party that intends not to rely on the Clause.

Therefore, and in all fairness, the inclusion of the Clause in terms of the contract signed between the tenant and the landlord amount to a fair Term. In exhausting the test of determining whether the clause amounted to a fair one, the reasonability of the tenant to include the clause, to which the tenant assented, proofs that the Fairness and Reasonability of the clause stands.

In support to the reasonability and fairness of the inclusion of the clause in the contract, the Unfair Terms in Consumer Contracts Regulation, UTCCA of 1999 defines liability arising from negligence. Section 2(2) UTCCA of 19995 stipulates that loss or damage incurred by one party cannot get considered as negligence of the other party. This is valid except otherwise provided for in the contract. Even if, provided for, the provision, further, need to pass the reasonability requirement.

Further credence to asserting that the clause contained in the contract had, in effect upon signing, become binding to the Landlord and the Tenant, get support from Section 3(2) (bi) UTCCA of 19996. The section stipulates that one party to the contract cannot provide that not provided for in the contract. Rather, any other provisions lie at the discreet choice of the party offering the provisions.

The above Section, therefore, explains that since a contract existed between the Landlord and the tenant, each party got bound by the terms contained in the contract. Therefore, the tenant deserves no right, in light of the contract, to demand that the landlord take responsibility on damages incurred as per the MP3.

In the court case of Suisse Atlantique Societe d'Armement Maritime SA v Rotterdamsche Kolen Centrale7, the issue of the use of understandable language in contracts undergoes examination. In Part 3 of the determination of the case, Lord Reid sums up the complexity of language involved in contracts. He stipulates that the use of simple and intelligible language in contracts avert misunderstandings and arguments.