Irish Rules in Relation to Incorporation of Exclusion Clauses
An exclusion clause seeks to restrict or exclude liability in case the contract is breached or if some terms of the contract are misinterpreted. In Ireland, any contracting parties depend on three hurdles when designing and incorporating exclusion clauses. Firstly, the exclusion clause must be clearly incorporated into the contract in letters and a font must be clearly visible to the contracting parties. Additionally, the exclusion clause must apply to cover the stated events following its construction (Bevans 2011). Finally, the clause must be valid and should not contradict the existing terms of unfair contracts.
According to the Irish law, the exclusion clause is meant to define the central obligations of the contracting parties. In most cases, many organisations incorporate exclusion clauses to serve as a defence in case the contract is breached. Therefore, exclusion clauses are very essential when signing contracts. In this regard, people who are making contracts ought to be keen enough to fully understand the significance of all clauses. The Irish law clearly outlines the terms of incorporating an exclusion clause within a contract. The law notes that all statements, either written or oral become part of the contract if they are made before the contract is completed. Any other statement that comes after the signing of the contract is not valid. Moreover, any other matter that is incorporated between the parties has to make reference to the contract. In addition, the statement should be visible and easily understandable.
The Irish law outlines that an exclusion clause can be incorporated in three different methods. The most common method is a signature signed in the contractual document. The signature on the document clearly illustrates that the two parties must act in line with terms of the contract (Bevans 2011). Secondly, a notice can also be issued in regard to the exclusion clause. However, to make the contract reasonable, the timing must be appropriate. Moreover, the original document containing the agreement must make reference to the notice. Finally, an institution can give an exclusion clause through a document. However, the issuance of the document must also be timely. It should be issued before the contract is concluded because any document issued after the conclusion of the contract shall not be valid. In addition, the document must be in the form of contract, and its terms must be reasonable and understandable.
In Ireland, the exclusion clauses are constructed following certain rules. Firstly, there is the contra preference rule. The rule prohibits the imposition of the clause by one party to the other. Secondly, it is important to draft precise rule. The rule requires all exclusion clauses to be drafted in precise and clear terms with little or no ambiguity (Doolan 2011). Thirdly, there is a construction according to the natural meaning rule. The rule requires all exclusion clauses to have ordinary and natural meanings capturing ordinary events.
The Irish law is very clear in the terms of exclusion clauses. The words used in outlining the exclusion clause must cover the liability in question. Indeed, the law states that the words used must unequivocally and clearly cover all aspects of the clause. In the case there is a complaint from a client, the courts examine whether the clause is fabricated in a way that it conceals the liability or obligation that it seeks to restrict or exclude. For example, keywords relating to the excluded liability must be present in the clause. The Irish law prohibits ambiguous wording or excessively wide clauses. Also, the law argues that too broad in scope clauses are ambiguous, and they are likely to compromise the central purpose of the exclusion clause.
Regarding the case facing Aunty Em's Catering School Ltd, there are many factors that can be considered to determine if the institution is excluded from liability. Firstly, the exclusion clause is only valid through three provisions namely putting a signature, giving notice or issuing a document. However, all these must be issued before the contract is completed (Howarth 2009). It is obvious that the student had signed an agreement before joining classes in the institution. The exclusion clause, in this regard, should have been incorporated in the contract and not in the classroom. Some of the people may not be cautious enough to check whether there is such a notice in the classroom. In this case, the institution cannot be excluded in respect to the loss.
Construction to Exclude Liability
For an institution to be excluded from the liability there must be enough evidence that the notice in the class was referred in the agreement letter. The given notice could be viable only if it were part of the contract. However, there must be enough proof that the institution is not trying to exempt itself from the liability. The Irish law does not only emphasise on precise and clear exclusion clauses but also on the institution's intentions to enhance legal relations. The key thing in this case is the central intention to be legally bound and not escaping from liability. Thus, it is quite obvious that many institutions incorporate exclusion clauses to avoid liability (Howarth 2009). Aunty Em's Catering School Ltd should also show its efforts and measures that have been initiated to curb such theft practices. The institution should not shift the security responsibility to the students. Exclusion from the liability must show all the above aspects.
The main document containing the agreement should also be produced. However, Aunty Em's Catering School Ltd can only be excluded from liability if all terms outlined in the Irish exclusion law are fully met. Firstly, there must be a precise clause with words that are fully understandable to the two parties. Additionally, the clause must outline situations when the school will not be liable for losses incurred by the students. The clause must also be brief and unambiguous. Moreover, there must be a signature from the student confirming that the clause was clear. If a student were not given an agreement letter to sign, there should be either a notice or document outlining the exclusion clause. However, the document or notice should clearly relate to the signed contract, and should be offered to the student before the contract is completed. In this regard, Aunty Em's Catering School Ltd can be excluded from the liability.
Second Legal Letter
In legal terms, negligence is failing to do something that one was required to do. In more advanced terms, the things that are not done could have prevented a dangerous event that occurred. Additionally, negligence applies when one does something carelessly without applying the expected care and prudence (Ireland 2013). Consequently, the activities that are carelessly conducted result to accidents or great losses. Therefore, it is clear that negligence takes two central faces. It is when something is not done and when things are done without care and prudence required. Negligence, in this view, takes the forms of actions as well as omissions. For example, when a patient dies as a result of not being attended to, then that is negligence. When something that is not repaired results to an accident, then that is negligence. Finally, when the house collapses due to careless construction, then that is also negligence. Therefore, when determining the magnitude of negligence, it is always prudent to assess the conduct of a person suspected to have neglected a critical situation. It is also good to assess if the said person applied any effort to reduce the harm.
Factors that the Court Consider Regarding Negligence
The court should assess the said negligence in terms of the instructions given by the kitchen manager to the lecturer on behalf of the institution. Firstly, the court should consider the institution's duty to protect. In this regard, the institution has a duty to protect all the staff by means of proper repair of all items used by them. The manager has a duty to foresee any danger that can arise from the unrepaired torch and mitigate it. Therefore, it is the duty of Aunty Em's Catering School Ltd to have all facilities and equipment maintained in a manner that cannot cause harm to the lecturers and students (Doolan 2011). The fact that the kitchen manager and the administration knew about the damage and failed to initiate repair shows great negligence. One can guess what would have been the case if the explosion was extensive. Many students, besides the lecturer, would have incurred serious burns.
The second factor that judges ought to consider is failing to exercise rational standards of care. The duty of the institution is to exercise comprehensive care to both the students and workers. The effort to care and prevent accidents should be evident. Failure to exercise care measures is termed as negligence. In this regard, it is good for any management to assess what ought to be done in a risky situation so as to avoid further injuries. Continuous lack of repair of facilities and equipment shows high standards of negligence (Irish Law Times 2010). The management, in this regard, failed to act despite the knowledge of the default. Lack of care, as evident in the current case, is negligence
Thirdly, the court must consider the proximate cause. There ought to be a vivid connection between the incurred injuries and the said act of negligence. In this regard, the act of negligence is a breach of duty. The kitchen manager fails to repair the torch after being informed about its default. In fact, the manager encourages the lecturer to continue using it despite its defaults. The manager should have foreseen the likelihood of an accident if the torch was not repaired. However, failure to initiate repair resulted to the lecturer's injury (Ireland 2012). Therefore, there is a proximate link between the injury and the acts of negligence.
Finally, the court has to determine if there was an actual mental or physical injury as a result of the negligence case. In this regard, the injury must not be imaginary but real. However, the incurred injury must only be physical. In the current case, there is provable injury since the lecturer incurred serious burns. The burns prove that the negligence was there, and it resulted to provable injuries (Kilkelly 2014).
The Impact of Lecturers Claims
The issue of negligence is clearly outlined in the Irish law. The rules of negligence apply to all professionals as stated in a professional negligence act. As earlier noted, Aunty Em's Catering School Ltd could have been liable for negligence if the lecturer had informed the kitchen manager about the default and the manager failed to take action. However, if the manager told the lecturer to stop using the torch until it was repaired, it would be the lecturer's mistake if she continuously used the torch without it being repaired. In this regard, the lecturer becomes liable for negligence and the institution cannot compensate her (Prechel 2010). To begin with, the lecturer is a professional since her service is specialised and skilled.
The Irish law recognises negligence if three conditions are met. Firstly, the duty of care must be identified between the plaintiff and defendant. In the current case, the kitchen manager had shown care by advising the lecturer not to use a torch. On the other hand, the lecturer does not show any care by using the torch despite the warning.
Secondly the case must show that the defendant has omitted, acted or spoken in a manner that compromised care. In the current case, if the kitchen manager had warned the lecturer about the torch, then the institution cannot be liable (Ward 2010). However, the plaintiff is totally liable for the negligence since she went ahead to use the torch despite the warning.
Thirdly, negligence is valid if the plaintiff suffers provable injuries. Therefore, the lecturer suffers serious burns, but out of her negligence. Aunty Em's Catering School Ltd had on it part warned the lecturer not to use the damaged torch but she went ahead to use it. Therefore, the institution cannot be liable for negligence in this case (Yates 2010). For example, in the case between Byrne and Boadle, Byrne worked as an employee in Boadle's flour shop. One day, Byrne was warned not to use one of the flour mills since it had a problem. A customer came, and Byrne used the machine that was damaged. However, one of the chopping wheels broke and cut down Byrne's hand. Byrne went to court seeking to be compensated for his lost hand. The court ruled in favour of Boadle since he had warned Byrne not to use the machine.
Third Legal Letter
Irish Law Regarding Occupiers Liability
The Irish law gives an occupier a duty over visitors, trespassers and recreational users. A visitor is any person present in the premises having being invited by either the occupier or any other family member. A visitor includes family members and other outsiders present in the premises. According to the Irish Law, it is the central duty of the occupier to ensure that the premise is safe. However, the occupier is supposed to issue warnings regarding any unsafe action or place within the premises. The said notice should be put in a clear and visible place within the entrance of the premises. The occupier must post written warnings to visitors on all potential risks within the premises.
The Irish law also gives the occupier a responsibility for trespassers and recreational users (Ward 2010). Recreational users include all people who visit the premises for recreational purposes. Other visitors who are neither visitors nor recreation users are termed as trespassers. Moreover, the occupier has a central duty to make sure that neither trespassers nor recreational users incur injuries within the premises. All measures should be initiated such that all people visiting the premises are free from danger. There should be clear notices on any dangerous zone or element within the premises. All structures within the premises should be safe for visitors, trespassers and recreational users (Yates 2010). However, the occupier is not a liable to any injury incurred by anyone due the negligence of any contractor working within the premises.
Therefore, it is clear that an occupier has a duty over visitors, trespassers and recreational users within the premises. In this regard, proper and visible notices should be posted outlining all materials, areas or elements that might be dangerous within the premises. In the current case, Aunty Em's Catering School Ltd did not put any notice on the tree to this effect. Therefore, the child picked the apple without any knowledge of how poisonous it was (Soderquist 2009). The institution is, therefore, liable for any illness and medical expenses incurred when the girl ate the apple.