The two key sections are Sections 2 and 3 Section 21 a person cannot exclude or

The two key sections are sections 2 and 3 section 21

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The two key sections are Sections 2 and 3 . Section 2(1) : a person cannot exclude or restrict liability for negligence in relation to personal injury or death o BUT Why do companies still put in the clause? o Swimming pool if there is no guard any accident is your personal responsibility give precaution and warning o Scared tactic o Cark park Quiz: Zoo Section 2(2) : he cannot also exclude or restrict liability for negligence in relation to other losses (such as property damage ) unless the clause satisfies the requirement of reasonableness.
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Section 3 : essentially provides that when one party deals as a consumer or on the other’s written standard terms 6 , liability for breach of contract cannot be excluded or restricted unless the term satisfies the requirement of reasonableness. Section 11(1) : reasonableness must be judged at the time the contract was made and not at the time the breach occurred. o For instance, in a contract with the bank, it may be provided that the customer has to check monthly statements sent to him and report any discrepancies within seven days and that if he fails to do so, he would not be able to sue the bank for wrongful debits. This is in effect a type of limitation clause and whether it is valid would depend on, among other things, whether the seven-day limitation period is considered reasonable . However, in determining this, the conditions at the time of the contract must be looked at and not the conditions that arise subsequently . For instance, if it established that seven days is generally reasonable, the fact that the particular customer in question was hospitalized so that he could not reply within those seven days should not make the clause unreasonable. Section 11(5): the person who is alleging that the clause is reasonable has the burden of proving it to be such . Factors that are relevant in determining the issue are discussed below. Different factors may point in different directions and ultimately a court would have to weigh and balance them before arriving at a decision. (a) The bargaining strength of the parties o If the parties have equal bargaining strengths , it is likely that they could have negotiated the terms and so the exclusion or limitation clause is likely to be considered to be reasonable. o Consmat Singapore (Pte) Ltd v America National Trust and Savings Association (1992) , the court held that the clause was reasonable for, among other reasons, both the parties in question were commercial organisations with equality of bargaining power. o Metro (Pte) Ltd v Wormald Security (S.E.A.) Pte Ltd (1981) , where the security system did not work and goods were stolen as a result, the court held that the security company was not liable. This was because of the presence of an exclusion clause that was considered to be reasonable, as both parties were commercial organisations with equality of bargaining power. (b) Whether the customer received an inducement to agree to the term (c) Whether the customer knows or ought to know about the exemption clause o If the exclusion or limitation clause is common or is used often in the trade, or if the parties had a previous course of dealings in which such clauses were used, the court might be inclined to
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  • Spring '18
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