Bloody Legal Writing

EdgarAllenPoo

Right I've looked over this so much it's making my brain itch, this is the problem question I've been given:

Mary decided to attend a "Barbara Streisand Tribute Weekend" at a 4-Star hotel. She took her favourite diamond necklace (value 30,000 euros) with her. On arriving at the hotel, Mary asked the receptionist if it would be possible to leave her necklace in the hotel's safe when she was not wearing it. The receptionist replied that it was all part of the service and then gave Mary a form to sign. Mary did not read the form but signed it and gave it back to the receptionist along with the diamond necklace.
During the weekend, the necklace was stolen after the safe was left open by the receptionist who had been distracted by one of the thieves.
When Mary claimed against the hotel for the loss of the necklace, the hotel's manager drew her attention to an exclusion clause on the form, which she had signed, which disclaimed all liability for thefts from the hotel other than those committed by the hotel's employees.
The exclusion clause is printed clearly and visibly and is written in plain English. Advise Mary as to whether the hotel can rely on it.

Now I would say that she doesn't have a leg to stand on because she signed the form even though she didn't read it but I have to present a legal submission as if I'm her council.

How the hell do I do that if on the facts and in my opinion she has no case?

hullaballoo

Ok, one of the things that you need to do is realise that when this sort of thing arises in real life, you don't have an option. You have to make a case for your client.

From first principles, it's clearly unfair that the hotel purports to exclude liability on the basis of a standard form that they ask you to sign. There are a number of angles that you can argue here in relation to this, but my first suggestion is that you do some searches on westlaw or lexisnexis or justis etc.

We're not going to do your homework for you, but I will say that you have to ask yourself what sort of an agreement you're looking at here: is it a contract? is it merely a waiver of rights? If so, are they rights that can be waived? If so, how? etc.

As it happens, I think Mary's perfectly entitled to recover.

EdgarAllenPoo

I wasn't looking for people to do it for me. I just didn't see how I could argue that she had a case, she signed the form without reading it, that was her own fault was it not?

hullaballoo

Seriously, go look it up.

Start with google if you're unsure where to begin. Nevermind the waiver form in the beginning. Think about what she's suing for - contract or tort or both? Look into what allows her to sue under, say, negligence - what does there need to be? A duty of care, a breach of the duty and some sort of foreseeability. Once you've looked at that, then look at what defences are open to the Hotel i.e., the waiver form. Find out what needs to be contained in a waiver form for it to be effective, and find out who has the burden of proof in relation to the waiver.

Then find out what level of knowledge the Plaintiff has to have in relation to signing the documents. The courts have been amenable to the fact that people generally don't read the small-print in the past, so have a look at some case law in relation to that.

Tom Young

GDM - That extract is based on a UK Contract law case. Hullaballu's comments/advice should be followed.

dermot_sheehan

GDM wrote: »

Right I've looked over this so much it's making my brain itch, this is the problem question I've been given:



Now I would say that she doesn't have a leg to stand on because she signed the form even though she didn't read it but I have to present a legal submission as if I'm her council.

How the hell do I do that if on the facts and in my opinion she has no case?

Look up law on liability for bailees (that in effect is what the hotel is doing). Look up law on exclusion clauses and the enforceability thereof at common law (especially Lord Denning's red hand comment), look at sale of goods act and unfair terms in consumer contracts regulations as this is arguably a consumer contract.

Also look up jurisdictions of courts as I assume thats why value of necklace is in question, would she sue in the district, circuit and/or high court.


Hint: It's an easy enough question and I would say yes she has a case

EdgarAllenPoo

Got it done anywho, I knew it was on the topic of exclusion clauses but as I said the question asked us to advise her if we thought she had a case, I thought she didn't and was wondering how I manage that in advocacy.

I changed my slant on and everything worked out nicely.

TJM

http://acts.oireachtas.ie/print/zza7y1963.1.html

Victor

Everything put in the question should be used, you must agree or disagree with each point. There is at least one pertinant point that has not been addressed here.

DamoDLK

LOL this reads like a Kathleen M Walsh Question!!!