Essay on "Mooting Assessment Problem Solving"

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[EXCERPT] . . . .

Mooting Assessment

A contract can be defined as a legal agreement between two or more parties, where the law binds both parties to adhere to the terms of the contract

Failing this, those in violation of the contract terms can be held liable for contract breach. To protect all parties involved in contracts and to minimize the time and expenses involved in law suits, the Unfair Contract Terms Act (UCTA) has been created in 1977 for England, Wales, Northern Ireland, and Scotland

The purpose of this act is to provide limits in terms of civil liability for breach of contract, negligence, or other breach of duty and this provides guidelines for creating contract terms that would provide protection against such liability. In the case of Ms. Edwards and her claim against the University of the East of England, she is claiming that the University's lack of liability acceptance for the damage to her property is unfair in terms of the UCTA s.2(2). However, when examining this claim more closely, it becomes clear that the University indeed has the right to appeal its case under this point.

The relevant point of the UCTA in terms of Ms. Edwards' claim is s.2(2), where the Act states: "In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness." Point (c) of her contract with the University, on the other hand, states: "The University accepts no liability in negligence for property damage suffered by students on University premises." Ms Edwards is claiming that these terms are unreasonable. It is significant that she is

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claiming this only after the fact that her MP3 player has been damaged as a result of what she refers to as the University's "negligence."

The first important point to be made here is the timing of Ms Edwards' claim. She and the university have entered into the contract, presumably, with mutual understanding and agreement. Surely, her acceptance of the terms means that she entered this contract with the understanding that all the terms are legally enforceable. Since the UCTA legislation is meant to help create contract terms that would avoid such disagreements, surely she should have investigated the terms for unreasonableness prior to entering the contract. It is significant that she is only claiming unreasonableness after the damage to her property, even after having entered into the contract by mutual agreement, accepting that the university would accept no liability.

Further, one can investigate the idea of reasonableness more closely. Term (c) of the university's contract states that the university will accept no responsibility for damage to personal property on the premises. Ms Edwards is claiming unreasonableness because her MP3 player was damaged. However, could one reasonably expect an institution such as a university to safeguard the personal property of each individual on its premises, especially when it comes to items such as MP3 players, cell phones, and the like? In such a case, one might argue that it is conversely reasonable instead to expect each individual to safeguard his or her own property against theft, damage, and so on. On this argument, the university might therefore argue that, as stated in its contract terms, it cannot be held accountable for an electronic item, the personal property of a student, that was damaged. In support of this argument, the university can also state that the contract has been signed in mutual agreement by the university and Ms Edwards.

Another aspect of contract law that should be maintained in cases such as that between Ms Edwards and the university is that contracts general involve duties and responsibilities for both or all parties involved

. There is, for example, a significant difference between tort law and contract law, where the former involves the right of individuals to claim negligence or damages related to certain unforeseen circumstances. In contract law, however, a contract is legally binding to both or all individuals involved with certain duties imposed upon both. The university openly included in its terms that it would not be liable for damage to personal items, implying that the individual owners of such property would instead be responsible. As pointed out, this is reasonable, relating to the nature of the institution, its… READ MORE

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Quoted Instructions for "Mooting Assessment Problem Solving" Assignment:

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University of the East of England v Edwards

In the Court of Appeal

Ms Edwards is a student at the University of the East of England. She lives in halls of residence, and pays Â£140 per week for her accommodation, Â£20 a week less than she would pay for the equivalent private rental property in her area. Her tenancy agreement includes the following terms:

(a) Students are prohibited from holding parties in the accommodation without the prior permission of the University;

(b) Collective liability will be imposed upon students for damage when the individual(s) responsible cannot be identified; each student will pay an equal proportion in respect of any such damage;

(c) The University accepts no liability in negligence for property damage suffered by students on University premises.

In order to raise money to pay for a holiday, Ms Edwards wants to hold a themed party in her university accommodation, and to charge each guest a Â£10 admission fee. She does not want to seek the permission of the University for this party, since she believes that her plan to charge an entrance fee, and the theme, *****˜music inspired by LSD*****, would be unacceptable to it and she thinks that term (a) is *****˜unfair***** and therefore contrary to the Unfair Terms in Consumer Contracts Regulations 1999. Ms Edwards also thinks that term (c) unfair because it is *****˜unreasonable***** and therefore contrary to s.2(2) of the Unfair Contract Terms Act (UCTA) 1977. This term concerns her because her MP3 player has been broken in her halls of residence by the University*****s negligence.

The trial judge accepts Ms Edwards***** argument, holding:

SENIOR

(1) That term (a), considered in the light of term (b), is unfair under the Unfair Terms in Consumer Contracts Regulations 1999, and therefore not binding on her;

JUNIOR

And

(2) That term (c) is unreasonable under UCTA. The University is appealing against both findings.

The University is appealing against both findings.

DESCRIPTION:

Bibliography format / citation style : Footnote

This is a case given for a mooting assessment (UK). My position in the mooting assessment is JUNIOR APPELLANT.

Junior Apellant appeals against the decision(s) of the lower court and argues that the appeal should be allowed. According to the given case, you should argue AGAINST the statement that the term (c ) is unreasonable under UCTA. You are only concerned with the second argument. Please read the full statute (the unfair contract terms act(UCTA) 1977 ) before putting your arguments. Please try to rebut the possible counter arguments and be persuasive.

You can refer to a total of 3 authorities (cases, statutes, secondary sources) Thanks in advance.

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