POL- Nov26

POL- Nov26 - Case Study: Photoproduction vs. Securecor...

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Case Study: Photoproduction vs. Securecor -Securecor a security company, an employee burned down the factory on purpose. Exclusion clause says they are not responsible for anything that happens, unless they didn’t properly screen their employees (which they did). Employee wilfully burned down the place, no negligence. -Doctrine of fundamental breach: courts are reluctant to enforce exclusion clauses because they are fundamentally unfair. If the breaching party is so severe in their actions, and it denies the innocent party any benefit, the contract fails. Doctrine was not in place for long. -Since parties are so small and had made agreements with each other, they should be allowed to assess risk among each other. -Parliament passed a law that said “in a consumer contract, exclusion clauses won’t apply”. These two entities in question are not consumers. They have equal bargaining power. Two sophisticated business entities. -If the terms are ambiguous in a written contract they should be read to the disadvantage of the author. -Clause was clearly written, facts come inside the clause, defendant succeeds. -Securecor only asks a modest fee. The richer plaintiff should take on the risk and bear the cost of insurance. Clause was written clearly and protects them from liability. -Secondary obligation to pay damages can not be a penalty penalty- extremely expensive damages, inordinate liquidated damages- damages upon a breach Case Study: Rider vs. Microsoft -Rider signed up for Microsoft online service with a reverse or negative option billing: where you are billed at a later date unless you say you don’t want it
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This note was uploaded on 04/04/2009 for the course PHIL 2821 taught by Professor Klimchuk during the Spring '09 term at UWO.

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POL- Nov26 - Case Study: Photoproduction vs. Securecor...

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