conditions warranties and innominate terms


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Cedric entered into a contract with the Distinguished Hotel for the wedding reception of his daughter Ali and groom Benno s big day. In the contract Cedric made with the hotel he was assured that all 300 of his guests would be seated in the chosen function room with a view of the top table, on the day however some of the guests were placed in an adjoining conservatory without a view of the top table. For this to be a breach of contract will depend on whether the statement made between the hotel and Cedric can be classified as a representation or a term of the contract. If the statement was said to encourage a party to make a contract but does not actually form part of the contract this is only a representation. On the other hand a term will be an undertaking in the contract s execution. (Furmston(2007): 157-159). Whether the statement made by the hotel is a representation or a term will be a question of the parties intention. (Elliott and Quinn (2010): 122). The statement in question is an important one and is likely to be a term rather than a representation. This could be indicated by considering whether the contract would have been made without the existence of this statement. (Banner v White (1861)). For Cedric it is arguable that having all the guests within the function room with a view of the top table was an important aspect for him and not having this goes against the contract s intensions. Adding to this Cedric provided the hotel with the number of guests, and not unreasonably has relied upon the hotel managers specialist knowledge in offering his assurance of accommodating all the guests as described. (Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd (1965)). Furthermore the statement was made at the point at which Cedric was entering the contract, suggesting that it was in fact a term in the contract. (Routledge v McKay (1954)).

Terms are categorized into three types: conditions, warranties and innominate terms. In Cedric s case there only appears to be disappointment within the wedding party. This being taken into account it is likely to be considered a warranty as the breach is only trivial in relation to the overall reception provided. (Hong Kong Fir Shipping Co. Ltd v Kawasaki Ltd (1962)). The remedy that can be sought by Cedric would be damages for compensation for the breach.

The second issue was the food poising of the guests due to poorly cooked chicken. As a direct result of this Cedric could sue for breach of contract. In the contract certain terms are implied by law under the Supply of Goods and Services Act 1982. Section 13 of the Act details that the supplier will carry out a service with reasonable care and skill . The key question for the hotel they delivered a service with reasonable care and skill . The fact that the food poising was caused by improperly cooked chicken would suggest that they did not and therefore fell below the standard of care required under the Act. The facts would suggest that poising guests would be a serious breach of contract meriting a refund or substantial reduction of the reception cost.

Another issue for the hotel is that the poisoned guests may sue for negligence. In order to determine the liability in the tort of negligence it is necessary to establish all three elements of negligence on the basis of the facts: (Bermingham and Brennan (2010): 38)

(1) Whether a duty of care existed between the hotel and the guests?

(2) Whether actions taken by the hotel broke that duty of care?

(3) Whether the breach caused the damage of a legally recognizable kind to the guests?

It can be argued that the hotel owed all the guests a reasonable duty of care to avoid such acts or omissions, which could be reasonably foreseen as likely to cause injury. (Donoghue v Stevenson (1932)). Obviously the hotel could have easily foreseen that food preparation could impact on the guests. Additionally the relationship between the hotel and the guests was of a sufficient proximity that actions taken by the hotel would impact the guests. This type of relationship is one that can be considered just, fair and reasonable to impose liability as there is reasonable reliance upon the hotel to provide satisfactory service.

A duty of care is breached when the defendant does something in the same circumstances that the reasonable person would not do. (Blyth v Birmingham Waterworks (1856)). It can be argued that no reasonable hotel would serve food improperly cooked, as the magnitude of risk to the guests would be heightened by improperly cooked food. (Bolton v Stone (1951)). Taking simple hygiene and cooking measures could have easily prevented this. The hotel has breached its duty of care by failing to provide safe chicken fit for human consumption.

The final stage in a claim in negligence is causation and determining whether the food poising would have not occurred if it had been properly cooked. The damage sustained by the guests must be attributable to the hotel and be the type of injury, which could have been reasonably foreseen. (Overseas Tankship (UK) Ltd v Morts Dock and Engineering). It is clearly evident from the facts that the chicken caused the food poising and this type of injury could have been easily foreseen.

However, for the actual claim sought by Ali and Benno the compensation will be damages, whilst they are seeking compensation for the honeymoon and its repurchase the courts will examine what damages they are entitled to. It is likely that the court would award damages for the loss of their honeymoon as it could be reasonably foreseen that poising the wedding party would result in losing out on a honeymoon. However it will be very unlikely that they would be successful in claiming a holiday to the Far East for two weeks, the level of compensations will be for the value of the honeymoon to Eastbourne as the courts will be unwilling to allow the couple profit from this.

In summary the hotel is going to be liable for the cost or a proportion of the cost of the wedding reception, because there are at least two actions of breach of contract for failing to have all the guests seated together with a view of the top table and for failing to exercise reasonable care in ensuring food served would be fit for consumption. There is also an action in negligence for Ali and Benno for compensation in claiming damages for the loss of their honeymoon to Eastbourne. It is unlikely that they would be legally entitled to force the hotel to pay for the honeymoon to the Far East as this would allow them to profit and upgrade their honeymoon.

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