QUESTIONS.
A. In the Period of 2019 around August Kandeka, a music promoter with his
manager Yomaps came across Kidist 15 and Mwizu 17 as they were playing
music along Chachacha Road in the beautiful city of Lusaka. Kandeka told the
girls that they were very talented with a bright future in Music. Kandeka and
yomaps who work side by side told the young girls that they were prepared to
invest their time and money if they agreed to be under their well-established
music label and management. A contract was offered to them which contained
the following terms.
(a) Kidist and Mwizu agree not to write and/ or play music for any recording artist
or label (b)The Contract is for a period of 6 years and can be renewed at the end
of its tenure based on the exclusive option of KANDEKE and YOMAPS.
The contract was signed by both girls (Kidist and Mwizu). Since 2019, they have
had considerable success both nationally and internationally. They have now
been offered a lucrative contract by Mampi Records, a rival management
company which they wish to accept. This morning, the duo have called on you for
legal advice. Advise them.
B. A closer look at the Exemption or exclusion clause depicts that they are terms
capable of excluding with a view to limit liability that is likely to arise by statute or
common Law pertaining to the terms of the Contract. However, there has been
an observation by Ewan Mackendrick regarding exclusion clauses in his Contract
Law Book and he has stated that" A contracting party who wishes to
include an exclusion clause in a contract must overcome three hurdles before he
can do so. First, it must be shown that the exclusion clause is properly
incorporated into the Contracts. Secondly, it must be shown that properly
interpreted the exclusion clause covers the loss, which has arisen. Thirdly, they
must be no other rule of law which would invalidate the exclusion clause.
Discuss the above statement with practical examples and case Law.
https://www.lawteacher.net/lectures/contract-law/construction/exclusion-causes/
A. ISSUES:
RULE OD LAW:
ANALYSIS:
CONCLUSION:
B. The term exclusion clause refers to ‘a clause in a contract or a term in a notice
which appears to exclude or restrict a liability or a legal duty which would
otherwise arise’1(EXPLAIN IN OWN WORDS). Therefore, there are three
requirements that must be met before an exclusion clause can be employed. The
contract must first be appropriately incorporated to reflect it. Secondly, it must be
demonstrated that the loss that has occurred is covered by the exclusion clause
when properly construed. Finally, there must be no other legal principle that
would render the exclusion provision invalid.
INCORPORATION.
1
Ewan McKendrick, Contract Law (12th Edition, Red Globe Press 2017)