Ms Edwards Is a Student

Ms Edwards is a student at the University of the East of England. She lives in halls of residence, and pays £140 per week for her accommodation, £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 £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. 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. In its contract the University of the East of England stipulated a term © which states that the University accepts no liability in negligence for property damage suffered by students on University premises. Ms. Edwards has argued that this term is unfair because it is 'unreasonable€ ™ and therefore contrary to s.2(2) of the Unfair Contract Terms Act (UCTA) 1977.

The term further concerns her because her MP3 player has been broken in her halls of residence by the University's negligence. As junior appellant, I argue for the university showing that the term © is reasonable under UCTA.

The guidelines in the Unfair Contract Terms Act 1977, Schedule 2 require that fairness and reasonableness should be judged according to the following criteria: 1) the strength of the bargaining positions of the parties relative to each other (2) Whether the customer had received an inducement for entering into the terms or whether the customer was offered an opportunity to enter into the terms with alternate parties (and that she or he therefore had other options) (3) Whether the customer was aware of all the conditions involved in the terms (and had previous trade or dealing with the party).

(4) Whether the term also excludes any other liability if the condition is not kept; whether the contract delineates and describes all possible conditions, so that the contract is reasonable and so that compliance with the contract can be expected to be maintained. As regards Ms. Edwards, we can show how the reasonableness exists in all these propositions: 1) Ms. Edwards was previously aware of the contract and could have questioned the university before signing (2) Ms. Edwards had opportunity to contrast that contract with the contract of other institutions.

After all, she presumably looked into other institutions before selecting ours (3) Ms. Edwards may have not aware of all the conditions involved in the terms (nor had she had previous trade or dealing with the University). Nonetheless, the university delineated the key conditions, and she could have asked the university. (4) the contract may have not delineated and described all possible conditions that may have excluded the students from certain liabilities, but this does not mean that they do not exist nor that Ms. Edwards could not have queried the university.

As indicated with the instance of the Mp3 player, exception may exist. Given the above, we have shown how the university has a reasonable claim. Secondly, there are also specific guidelines regarding how the definition of 'reasonableness' can be defined. The reasonableness test is the following: • the term is required to be a fair and reasonable one so that one can include in the contract.

• Both parties involved judge that this is the case and they are aware of all pertinent circumstances • the fairness and reasonableness is decided at the time that the contract is entered into not with hindsight after a certain instance has occurred • the resources of the party have to be taken into consideration as well as the recourse of the party to insurance • the burden is on the party seeking to enforce liability to show that their terms are fair and reasonable.

In regards to this case: The term is a fair and reasonable one. A student destroys an object belonging to the university; he or she is liable to replace it • Ms. Edwards signed the contract therefore she consented to the clause • Both parties decided and affirmed fairness and reasonableness of clause at the time that the contract was signed. • Ms. Edwards had plenty of time to find insurance for herself.

Given that she did not debate the clause at time of signing, she obviously considered herself to possess the necessary resources necessary for liability • the University agrees that the burden is on itself to show that their terms are fair and reasonable. To that end it will draw on the following precedent to support its case: Photo Production v Securicor [1980] Photo Production v Securicor [1980] AC 827 House of Lords was the case where the claimant (Photo Production) had signed a contract for provision of security services at Securicor.

The security guard's negligence caused fire to break out and consequent destruction at the claimant's factory. Securicor was, however, unwilling to pay since the contract had contained a clause discounting Securicor from destruction caused by negligence of workers. Claimant was well-aware of this clause at the time of signing. The issue was now between the two parties. Both had to deal with it, and the court declined to interfere. To reiterate: the court's decision was that "Where the parties are negotiating at arm's length, and.