understanding that it could be changed. However given there was a delay of more than 2 months and the platintiffs were unable to supply the generators to their own customers as a result, the court held that the plaintiffs were deprived of substantially the whole benefit of the contract. Hence, they were entitled to terminate the contact and sue for damages.However, X might be able to say that there was Frustration due to the strikes. Frustration is the happening of an unexpected event beyond the control of the parties, after the making of the contract, but before the completion of the contract, which makes further performance of the contract either illegal, impossible or radically different from what was originally envisaged by the parties. If frustration can be proven the parties should be excused from performing their obligations and the contract would automatically come to an end. In this case, X might say that due to the strike, it was impossible to supply Grade A rubber on the grounds that there was no manpower.
The next issue would be whether the clause at the back of the invoice for arbitration is allowed in the eyes of the law.Firstly, it must be noted that the clause was not stated in the initial verbal agreement and hence was should not be allowed as clauses have to be introduced or referred to at the time the contract isformed and not subsequently. The contract is essentially made at the point of offer and acceptance.Thus this clause which was introduced after this point, will not be valid in the eyes of the law and therefore Pete-Tire does not have to adhere to it and can instead sue for damages instead of going for arbitration in Japan. The issue arose in Thornton v Shoe Lane Parking Ltd(1971) where the court held that acceptance had taken place when the customer put the money into the slot machine.The contract was formed at that point. Since the ticket was introduced subsequent to that, it was not binding. In this case, since the invoice was only introduced after the contract was made, it is not binding.However, as the clause was already printed on previous invoices, X amy be able to argue that therehas been a consistent course of precious dealings between the parties in which the clause has been usedr, the clause might not be invalidated on this ground. The issue was brought up in Spurling v Bradshaw (1956), where the court held that even though the exclusion cloause in this case was ineffective as it was introduced. after the contract, because similar documents containing exclusionclause were used in previous occasions, the defendant was bound by it. Hence if it could be proventhat in previous agreements, the clause was present in documents. X could say that the clause should stand and arbitration is to be conducted.Then again, Pete-Tire may be able to argue that the clause was not reasonably visible. In this case it was printed at the back of the invoice. Moreover, more steps must be taken to bring it to attention of the other party if the clause is unusual. Therefore, the clause should not stand as it wasprinted at the back and might be considered to be not reasonably visible.