Mooting assessment and problem solving approaches

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 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 premises, and those frequenting the premises. On the strength of this, the university can argue that it has fully upheld its responsibilities and the terms of the legally binding contract it has signed with Ms Edwards, with full disclosure and with full knowledge by both parties.

Ms Edwards, on the other hand, is planning to breach her own obligations in terms of the contract, even knowing that the institution is a directly affected party, especially in terms of potential damage to the property it owns. She is further in violation of her contract by not planning to notify the university and by planning to gain financially from this breach of contract. Hence, the university could argue for its own legal standing in terms of the contract as opposed to that of Ms Edwards.

Finally, the university can also argue that Ms Edwards already experiences significant financial gain by using the premises of the university. Her weekly rental fee is £20 less than for equivalent private rental property in the area. This provides her not only with financial advantage, but also with the advantage of proximity to her place of study and the physical resources that go with such study. If the university were therefore to argue terms of fairness and reasonableness, the contract might reasonably include terms that are somewhat more specific and more stringent than those for a contract signed for private accommodation. To therefore breach the contract to gain financially for the purpose of financing an endeavour such as a holiday can only be in breach of the original contract.

According to the terms for property letting and management in the UK, negligence can be defined as "failure to take proper care"

. Before claiming that the university is liable under this definition, the terms of the contract need to be investigated carefully, along with the actions perpetrated by each party, as well as the conditions surrounding the contract and its terms.