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2 How to write a law essay Depending on the required work length, writing a law essay can be a long and involved process. START AS EARLY AS POSSIBLE! Many students develop their own style of attacking an essay topic. Generally however it is useful to break the essay-writing process down into the following steps: 1. Analysing your essay topic Before you can create an effective argument, you must determine exactly what you are being asked to answer. Your lecturer would have chosen his/her words carefully when setting the essay topic so avoid making generalisations and interpreting the question to suit your interests or level of knowledge. Seek clarification from your lecturer where necessary. It is often a good idea to highlight key words in the essay question and use them to structure your essay. 2. Researching Be thorough in your researching and try to locate as wide a variety of sources as possible i.e books, journals, texts, internet articles. Make extensive use of the lexis nexis and westlaw databases for tracking down journal articles (see the lawskool research guide). Many law journals are available online these days and you ll find that printing out web articles is much cheaper and easier than photocopying from the hard-copy journals.

3 3. Reading/note taking This will no doubt be the longest part of the essay-writing process. You should have a tentative essay plan in mind at this stage. - Firstly skim through your sources and try to work out some categories for your notes. - Now read through each source thoroughly, highlighting your printouts and tabbing your books, as you go. - Record extensive dot-point notes for each category (either on paper or on your word processor). Write/type out direct quotes verbatim. Ensure that you record all of your references as you go (trust us, this will make your life so much easier later on). 4. Planning You probably won t be able to finalise a definitive essay plan until after you have teased out all of the relevant information from your sources. The following diagram provides you with a useful way of planning out your essay.

4 Start broadly - Define key terms INTRODUCTION MAIN BODY Para 1 The body is narrow - Specifically answer the question. Para 2 Para 3 Para

5 End broadly CONCLUSION - Reflect on your main argument 5. Draft The hard part! Personal writing styles will differ; some preferring to stick rigidly to their plan and whittle down the essay in chunks; others taking a stream of consciousness approach in order to just get everything up on the screen before worrying about the text making any sense. Try to follow your plan but by no means worry about writing in perfect English at this stage. That s what the next step is for. Make liberal use of direct quotes and ensure that they are properly sourced.

6 6. Revising and refining This is where you turn your shambolic essay into a piece of solid gold that you can be proud of hurling through the essay shute on due date day. Be sure that you fully ANSWER THE QUESTION. It is imperative that there is a logical argument flowing through your entire essay that is easy for your marker to ascertain. If you have time, TAKE THE ESSAY TO YOUR UNI S STUDY-SKILLS CENTRE. The dedicated individuals working at Study- Skills will be happy to read over your essay and give you thoughtful criticism and advice. 7. Footnoting Everything must be fully referenced in a law essay, not just direct quotes. EVERY SINGLE PARAGRAPH MUST BE REFERENCED. Don t underestimate how long this can take you. Legal referencing is very precise and particular. Find out which legal referencing style your lectures prefer. It will no doubt be in the format of the Oxford Guide to Style. If you keep a record of all your references as you go along, you will avoid having to frantically fumble through your notes at 2am the morning before its due, trying to work out where you pulled your quotes. Happy essay-writing!

7 CONTRACT LAW ESSAY Introduction The Unfair Contract Terms Act 1977 altered the law on exclusion clauses 1, an area of the law which had been dealt with solely by common law. The UCTA 1977 was modern interventionist legislation 2 which intended to create better protection for a party in a weaker bargaining position who had entered into a contract. These parties were consumers who entered into contracts with businesses, or businesses that entered into contracts with other businesses that included unfair exclusion clauses in their contracts, that were detrimental to the other party. It is necessary to examine the importance of exclusion clauses, how the courts dealt with them prior to the UCTA and how the courts have interpreted the Act, in order to establish whether it submits contract terms to a lower standard of procedural and substantive fairness than under common law. It is also necessary to consider whether the Act or the common law favoured the consumer or businesses. 1 A clause in a contract which appears to restrict a liability or legal duty which would occur otherwise. 2 Adams, J and Brownsword, R, Key Issues in Contract, p. 262

8 Main Body An exclusion clause is an important element of a contract. If it is declared invalid by the courts, a business will incur liability and damages will be awarded to the other party. If such a clause is upheld, the consumer has no remedy within the confines of contract law. It is, therefore, important that contract terms should be submitted to a reasonable standard of fairness, to ensure that the decision made is fair to both parties. Moreover, to ensure that one contracting party does not use a contract as a shield to protect itself from liability, as a result of their own negligence or a fundamental breach. 3 The position of the courts under common law was described by Ewan McKendrick: the courts did not have the power, at common law, to invalidate an exclusion or limitation clause on the ground that it was unreasonable 4. Lord Denning had attempted to reform the law, to give the courts direct power to invalidate exclusion clauses, but his efforts were unsuccessful, as can be seen from Levison v. Patent Steam Carpet Cleaning Co. Ltd. 5 Ultimately, Lord Denning s wish was granted after the birth of the UCTA: We 3 Under s(3) of the UCTA a breach of contract would be where the contractual performance was substantially different to what the other party expected, or there was no performance, contrary to was expected. 4 McKendrick, E, Contract Law: Text, Cases and Materials, 2 nd edn. p [1978] QB 68

9 should no longer have to go through all kinds of gymnastic contortions to get round them [the principles of common law regarding unfair contract terms]. 6 The UCTA gave the courts the direct power to invalidate exclusion clauses that they found to be in conflict with the Act. For businesses entering into contracts with consumers, this new legislation was not in their favour, as it made it more difficult for them to include clauses which limited or excluded their liability. However, it benefited consumers and smaller businesses entering into contracts with larger companies, as it meant that there was a higher probability that their interests would be protected. For instance, it is outlined in s(2) ss(1) of the UCTA, that: A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict liability for death or personal injury resulting from negligence. What Adams and Brownsword describe as the centrepiece 7 of the Act, is s(3) which regulates the use of standard form contracts. It would seem that contracts are now submitted to a higher standard, maximising fairness. However, through the indirect powers exercised under the common law, the courts were able to promote fairness just as effectively. The courts considered the incorporation of exclusions clauses and interpreted them. 6 George Mitchell (Chesterhall) Ltd v. Finney Lock Seeds Ltd [1983] QB 284 at Adams, J and Brownsword, R, Key Issues in Contract, p. 262

10 Incorporation refers to when parties agree to include standard written terms in their contract. Using their indirect powers, the courts were able to reject an unreasonable exclusion clause by concluding it was not incorporated into the contract, for example, in Thornton v. Shoe Lane Parking Ltd 8. In J Spurling Ltd v. Bradshaw 9, where Lord Denning stated: Some clauses. would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient. This illustrates common law making the law regarding exclusion clauses fairer, as the more unreasonable the exclusion clause is, the higher the necessity is of informing the other party of this. Interpretation is the process where the courts must establish that the exclusion clause covers the damage caused. Under common law, the courts used restrictive rules and applied the contra proferentum principle to the interpretation of clauses. This meant that the clause was interpreted strictly against the party intending to rely on it. If there were any ambiguities in the clause, the courts tended to decide against the party hoping to rely upon it. This would, for example, apply to businesses hoping to use exclusion clauses to extricate themselves from a contractual obligation. McKendrick has described the process whereby the courts tried to enforce fairness, and businesses tried to remove themselves from contractual obligations, as a game of cat and mouse 10 in that the 8 [1971] 2 QB [1956] 1 WLR McKendrick, E, Contract Law, 6th edn p. 228

11 draftsmen of contracts containing exclusion clauses tried to evade the restrictive interpretation. This can be seen in Andrews Brothers (Bournemouth) Ltd v. Singer and Co. Ltd 11 During the process of interpreting an exclusion clause, the courts apply the reasonableness test, outlined in UCTA 1977 s(11) ss(1): In relation to the contract term, the requirement of reasonableness for the purposes of this Part of this Act. is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made. This definition emphasises an important element of exclusion clause interpretation. The reasonableness test is applied at the time when the parties enter into the contract and not when the breach has occurred. This distinction is important as it means that the facts of the dispute and the breach, whilst relevant, are less important than whether the clause was reasonable at the time of its creation. This can be seen from George Mitchell (Chesterhall) Ltd v. Finney Lock Seeds Ltd 12 where the defendants removed an exclusion clause from a standard form contract because they were entering into a contract with a more powerful party. This shows how the UCTA puts the onus on 11 [1934] 1 KB [1983] 2 AC 803

12 businesses to ensure that exclusion clauses are fair from the outset, and that unreasonable exclusion clauses which are part of a standard form contract are unacceptable legally. UCTA 1977 s(11) ss(5) states that it is the party claiming that their exclusion clause is reasonable who must prove that the contract term or notice was reasonable. This is something of a departure from common law principles and this means that there has been a shift from the onus being on the individual in the weaker bargaining position (the consumer) to prove that the exclusion clause is unreasonable, to the individual in the stronger bargaining position (the business) to prove that it is reasonable. This can be seen in Sheffield v. Pickfords Ltd 13. Whilst morally and practically it makes sense to place the burden of proof on the shoulders of the more powerful party, is this fair? In criminal law, the defendant is innocent until proven guilty, and the onus is on the prosecution to prove guilt. The situation under the UCTA appears to be that the defendant is guilty until proven innocent, and the onus is on the defendant to prove their innocence. The UCTA helps prevent contracts based on duress. This means that consumers who are potential victims of unequal bargaining power are better protected than was previously the case under common law. 14 Indeed, whilst there are common law 13 [1997] CLC Lord Denning MR in George Mitchell (Chesterhall) Ltd v. Finney Lock Seeds Ltd [1983] QB 284,

13 principles regarding duress, there is no common law protection for parties with unequal bargaining power. Now, there is protection for consumers from businesses under the UCTA, but its scope is narrow in that it is limited to exclusion clauses, and thus will not protect consumers in all situations where they are confronted by unfair contract terms. However, it could be argued that UCTA and indeed the Unfair Terms in Consumer Contracts Regulations (UTCCR) (1999) do little more than common law did to protect consumers because big businesses tend to have high-powered lawyers who are up to date with the legislation and can manipulate contracts during drafting, in order to escape liability. If consumers do not read or understand the small print and legalese, they are still disadvantaged if the contract is not covered under the UCTA (this can be seen with exclusion clauses in the small print of credit card agreements). 15 English contract law traditionally favours a laissez faire approach to the law, reflecting values of freedom of association, and freedom in establishing contract terms. However, this needs to be balanced with fairness. The UCTA attempts to do this, by equipping the courts with a powerful tool, enabling them to, for the most part, rule unfair exclusion clauses to be invalid. In Watford Electronics Ltd v. Sanderson CFL Ltd 16, Chadwick LJ emphasised the importance of the presumption of laissez faire in most circumstances, but how this presumption could be rebutted in cases where it was clear that exclusion clauses were unreasonable. This illustrates the difference in judicial positions as regards [2001] ALL ER (D) 290

14 two businesses entering into a contract compared to a business and consumer. However, in Photo Production Ltd v. Securicor Transport Ltd 17, Lord Wilberforce stressed that it was only parties who were not of unequal bargaining power, who were unlikely to be protected by the UCTA. It can be inferred from this that small businesses, as weaker bargaining parties are protected. It is difficult to pinpoint how different the law is post-ucta to how it was in common law. Adams and Brownsword suggest that judges essentially stick to their old common law principles and apply the UCTA to the exceptions. 18 This is confirmed by cases post- UCTA, which illustrate that the old common law principles that were used before the UCTA, are still in use. For example, the 3 rules of construction created by Lord Morton in Canada Steamship Lines Ltd v. The King 19 were confirmed in EE Caledonia Ltd v. Orbit Valve Co. Europe 20. In essence, how can it be said that the UCTA is fairer procedurally and substantially than common law (or vice versa), if there is little difference in the way that the courts look at cases now to the way that they did prior to the UCTA? There is a difference because whilst the courts have more or less accepted that the three Canada Steamship rules still remain, since criticism from Lord Hoffman in 17 [1980] AC 827 at Adams, J and Brownsword, R, Key Issues in Contract, p [1952] AC [1993] 4 All ER 165

15 Investors Compensation Scheme Ltd v. West Bromwich Building Society 21 there has been a relaxation in the use of the rules as can be seen from National Westminster Bank v. Urecht-America Finance Co 22. Indeed, the UCTA has made the courts question the necessity of the rules. Especially, as the rules are contradictory. One rule demands that a clause should be drafted widely and another implies that clauses should be drafted narrowly. 23 It remains to be seen whether these rules will be abandoned officially. One feature that is lacking in the UCTA is that it only applies to exclusion, limitation and indemnity clauses and not to all unfair contract terms, leaving those to other legislation and to common law. Furthermore, there are difficulties in that it overlaps with the UTCCR. However, this issue may soon be resolved. At the request of the Department for Trade and Industry, the Law Commission has drafted an Unfair Contract Terms Bill (2005), which aims to address all unfair contract terms and to codify the UTCCR and UCTA into one Act. The Law Commission suggested the creation of UCTA and got its way, so it may be successful with the new bill. Conclusion Although common law has been a useful tool in the battle against unfair exclusion clauses, the UCTA was necessary legislation which clarified the law. Its creation led to 21 [1998] 1 WLR [2001] EWCA Civ McKendrick, E, Contract Law, 6 th edn. p

16 greater procedural fairness because its provisions clarified when an exclusion clause would be regarded as unfair and when it would not be. It also created greater certainty in respect of interpretation of exclusion clauses, thereby increasing consistency in consequent decisions by the court, where the Act applied. However, it is submitted that whilst the framework of UCTA is certainly useful, and did result in a slight modification of the approach of the courts, that the legislation was largely a clarification of rules that had already been developed by the common law. Therefore, it is debatable as to whether it subjects contracts to greater substantive fairness than was originally the case under common law. BIBLIOGRAPHY Adams, John, and Brownsword, Roger, Key Issues in Contract, (London: Butterworths, 1995). McKendrick, Ewan, Contract Law, 6 th edn. (Hampshire: Palgrave Macmillan, 2005). McKendrick, Ewan, Contract Law: Text, Cases and Materials, 2 nd edn. (New York: Oxford University Press, 2005). Treitel, G. H., An Outline of The Law of Contract, 5 th edn. (London: Butterworths, 1995).

17 Yates, David, Exclusion Clauses in Contracts, 2 nd edn. (London: Sweet and Maxwell, 1982). If you have any queries regarding the Model Essay please us - lawskool@lawskool.co.uk

Problem question David v Photoprint - advise David

Problem question David v Photoprint - advise David In order for David to gain a remedy for the loss of the photos, there are several arguments he can advance. This essay will examine these arguments and