into the contract through signature LEstange v Graucob or by giving reasonable

Into the contract through signature lestange v

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into the contract through signature ( L’Estange v Graucob ) or by giving reasonable notice of the clause ( Olley v Marlborough Hotel ). To be effective, the exemption clause must be brought to the notice of the contracting parties before or at the time of the contract was made - Olley v Marlborough Hotel . Whether all that is reasonably necessary to give notice has been done in question of fact and the court will look at all the circumstances. (b) Doctrine of construction: in order to be able to rely on the clause, the clause must be clear (unambiguous) [test of scrutiny] and cover the liability which it is sought to exclude. The Court will apply the contra preferentum rule if the clause is ambiguous and will interpret the clause as against the person seeking to rely on it. The contra
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preferentum rule only applies when the clause is ambiguous. ( the court will construe the clause very strictly and in favour of the party who did not notice the clause due to the principle. ) In Malaysia law, a similar approach is adopted when dealing with the exemption clauses except that there is no statutory provision similar to the UCTA 1977 . Hence provided the clause has been incorporated and is clear and covers the liability sought to be excluded, it will stand. The party seeking to rely on the exclusion clause has to prove the validity of the clause and that the situation is covered by the exclusion clause. In Malaysian Airlines Bhd v Maline Nathan & Anor [1986] , the court held that notice of the exemption clause must be reasonably sufficient. In Syarikat Lee Heng Sdn Bhd v Port Swettenham Authority [1971] , the FC applied the contra preferentum rule where if the clause is ambiguous the court will interpret it against the person asserting it. OTF, the Court viewed that the exemption clause was vague and hence it would be interpreted in a manner against the party who sought to enforce it. In Sekawan Guards Sdn Bhd v Thong Guan Sdn Bhd [1995] , the issue was the validity of the exclusion clause for liability for negligent conduct. Here, the appellant entered into a contract with the respondent to provide security. A theft occurred. The respondent sued the applicant for breach of contract and negligence. However, the contract contained an exclusion
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clause stating that the appellant would not be liable for any loss suffered by the respondent unless the loss was solely the cause by the appellant’s guards. On the night of the theft, the appellant’s guards were not on duty. The respondents own guards were on duty. The HC did not want to take into account of the exclusion clause as it was not pleaded. However, the court said, obiter, that the burden of proving the validity of an exclusion clause is on the person who raises and relies on it. It was held in the case of Taveechai Marine [1995] that the validity of limitation clauses, limiting liability for negligence, depends on the construction of the condition in the context of the contract as a whole. The words should be given their natural and plain meaning, and the contra preferentum rule will also apply. In addition, the limitation clauses should
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