S sells a car to P. The agreement contains the following clause; “since the car is sold cheaply, on no condition or warranty that the car...

      

S sells a car to P. the agreement contains the following clause; “since the car is sold
cheaply, on no condition or warranty that the car is roadworthy is given.” The car fails
to move from the show room. S insists a legitimate deal has been concluded. Advise P.

  

Answers


Maurice
This problem is based on exemption clauses with specific reference to the concept of
fundamental obligation theory.

It is apparent that the contract of sale between S and P has an exemption clause by
which S is excluding himself from liability if the car turns out to be unroadworthy.

However, the interesting thing is that the car sold by S is incapable of self-propulsion,
yet S insists that a legitimate deal has been concluded.

It is evident that S has committed a fundamental breach of contract and hence cannot
rely on the exemption clause to escape liability. My advice to P is to institute
proceedings against S in damages for breach of contract. Although the exemption clause
is an integral part of the contract, it cannot be given effect by a court of law as doing so
enables S to evade the fundamental obligation of the contract.

My advise is based on the decision in Karsales (Harrow) Ltd V. Wallis whose facts were
substantially similar. It was held that the plaintiff could not rely on the exemption clause
to escape liability.
maurice.mutuku answered the question on May 1, 2018 at 13:45


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