I AM BIZZAY BIZZAY WITH THE STUFF FOR THE UNIVERSHIZZAY...
AISHIZZAY IN THE HIZZOUSE~!
That was lame... I don't know where that came from. Honest!
Wednesday, January 31, 2007
Tuesday, January 30, 2007
a close-one-eye guide to duress and some ranting
What is duress?
I point a gun at your head, say that it's loaded and further delve into the fact that if you don't transfer the money from so and so's account, which is a fraud, I'll blow your motherfucking head to a billion pieces then I'll probably go after your children.
That, my friends, is a circumstance of duress.
There's 2 types of duress.
(a) Duress of Circumstance
(b) Duress of Necessity
(a) is when the duress is basically the event occuring in the above example, where there is a definite and apparent fear of death or bodily harm whether on the defendent or on another and can only be accepted in the objective view of the 'reasonable man'. Another point to take into consideration is the time taken for committing the crime as a direct and immidiate response to the threat, therefore, causing a lapsed time would nullify the defence.
The locus standi for duress of necessity would be the case of R v Martin [1989] where the defendant had driven his stepson to work although he was disqualified from driving. He claimed that he had done this because his wife had threatened to commit suicide unless he did so, as the boy was in danger of losing his job if he was late. The wife had suicidal tendencies and a doctor stated that it was likely that she would have carried out her threat. The Court of Appeal allowed the defendant's appeal against his conviction, as the defence should have been left to the jury.
At the point where time of crime being committed is concerned, the case of R v Coles [1994] where At the defendant's trial for robbing two building societies, he pleaded that he had done so because of his inability to repay money lenders who had threatened him and his girlfriend and child. The trial judge ruled that no defence of duress was open to the defendant. Dismissing the defendant's appeal against conviction, the Court of Appeal held that the defence of duress by threats was not open to the defendant because the threateners had not nominated the offences which he had committed. Nor, the Court held, was the defence of duress of circumstances available. For the defendant to rely on the defence of duress of circumstances, there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the ommission of the offence had been a spontaneous reaction to the prospect of death or serious injury. Note: the connection between the threat and the offences was not as close and immediate as in Willer, Conway and Martin, where the offences had been virtually a spontaneous reaction to the physical arising.
(b) is where, as the term suggests, the accused is forced by a mere necessity to commit a crime. This is not available as a defence to a criminal charge simply because. With the general rule, however, there are always exceptions. For this being that services such as the police cars, fire engines and ambulances are exempt from being charged with things such as running the red light.
The locus standi for duress off necessity is R v. Dudley & Stevens [1884] where 3 members of a crew were cast adrift as they were shipwrecked and the defendants had decided that if they were to survive, they would have to kill and live on the already 'weak and dying' cabin boy, as they had simply put it. The defendants were sentenced to death, but this was commuted to six months' imprisonment.
As quoted from Lord Denning on justifying the rule:
"… if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass … . If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry."
Another case where duress of necessity is taken into account is R v Bourne [1939] where a gynaecologyst had performed an abortion on a young girl for fear that if he did not, both would die. The act was given concent by her parents and herself. He was found not guilty for 'unlawfully procuring a miscarriage' following a direction from the trial judge to the jury that the defendant did not act "unlawfully" for the purposes of s58 Offences Against the Person Act 1861, where he acted in good faith, in the exercise of his clinical judgement.
Currently, duress is not a viable defence for murder but is thoroughly discussed in the Law Commission Report Number 177.
_____________________________________
See how my brain has fluctuated to the extent as to write note in my blog?
*sigh*
I need to go print out some stuff...
*runs off at 10pm and returns smugly at 10:15pm*
Tomorrow:
9am - Contract Lecture
11am - Academic Wing meeting
1:30pm - Consti Tuts
3pm - Crim tuts: Duress
I must recommend James Morrison to your ears. He is very soothing to the savage beast. hahaha!!! Truly! I shit you not. He brought back good music. A'la funk.
I'm compiling some happy/soothing songs for dear Ezzy... she's not feeling too awesome.
Cheers!
I point a gun at your head, say that it's loaded and further delve into the fact that if you don't transfer the money from so and so's account, which is a fraud, I'll blow your motherfucking head to a billion pieces then I'll probably go after your children.
That, my friends, is a circumstance of duress.
There's 2 types of duress.
(a) Duress of Circumstance
(b) Duress of Necessity
(a) is when the duress is basically the event occuring in the above example, where there is a definite and apparent fear of death or bodily harm whether on the defendent or on another and can only be accepted in the objective view of the 'reasonable man'. Another point to take into consideration is the time taken for committing the crime as a direct and immidiate response to the threat, therefore, causing a lapsed time would nullify the defence.
The locus standi for duress of necessity would be the case of R v Martin [1989] where the defendant had driven his stepson to work although he was disqualified from driving. He claimed that he had done this because his wife had threatened to commit suicide unless he did so, as the boy was in danger of losing his job if he was late. The wife had suicidal tendencies and a doctor stated that it was likely that she would have carried out her threat. The Court of Appeal allowed the defendant's appeal against his conviction, as the defence should have been left to the jury.
At the point where time of crime being committed is concerned, the case of R v Coles [1994] where At the defendant's trial for robbing two building societies, he pleaded that he had done so because of his inability to repay money lenders who had threatened him and his girlfriend and child. The trial judge ruled that no defence of duress was open to the defendant. Dismissing the defendant's appeal against conviction, the Court of Appeal held that the defence of duress by threats was not open to the defendant because the threateners had not nominated the offences which he had committed. Nor, the Court held, was the defence of duress of circumstances available. For the defendant to rely on the defence of duress of circumstances, there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the ommission of the offence had been a spontaneous reaction to the prospect of death or serious injury. Note: the connection between the threat and the offences was not as close and immediate as in Willer, Conway and Martin, where the offences had been virtually a spontaneous reaction to the physical arising.
(b) is where, as the term suggests, the accused is forced by a mere necessity to commit a crime. This is not available as a defence to a criminal charge simply because. With the general rule, however, there are always exceptions. For this being that services such as the police cars, fire engines and ambulances are exempt from being charged with things such as running the red light.
The locus standi for duress off necessity is R v. Dudley & Stevens [1884] where 3 members of a crew were cast adrift as they were shipwrecked and the defendants had decided that if they were to survive, they would have to kill and live on the already 'weak and dying' cabin boy, as they had simply put it. The defendants were sentenced to death, but this was commuted to six months' imprisonment.
As quoted from Lord Denning on justifying the rule:
"… if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass … . If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry."
Another case where duress of necessity is taken into account is R v Bourne [1939] where a gynaecologyst had performed an abortion on a young girl for fear that if he did not, both would die. The act was given concent by her parents and herself. He was found not guilty for 'unlawfully procuring a miscarriage' following a direction from the trial judge to the jury that the defendant did not act "unlawfully" for the purposes of s58 Offences Against the Person Act 1861, where he acted in good faith, in the exercise of his clinical judgement.
Currently, duress is not a viable defence for murder but is thoroughly discussed in the Law Commission Report Number 177.
_____________________________________
See how my brain has fluctuated to the extent as to write note in my blog?
*sigh*
I need to go print out some stuff...
*runs off at 10pm and returns smugly at 10:15pm*
Tomorrow:
9am - Contract Lecture
11am - Academic Wing meeting
1:30pm - Consti Tuts
3pm - Crim tuts: Duress
I must recommend James Morrison to your ears. He is very soothing to the savage beast. hahaha!!! Truly! I shit you not. He brought back good music. A'la funk.
I'm compiling some happy/soothing songs for dear Ezzy... she's not feeling too awesome.
Cheers!
Sunday, January 28, 2007
change again
New year, New change.
The blog is now 3 years old. Therefore, Change the name. hahahaha!!
Pointless isn't it?
The chatbox isn't too blinding is it?
The blog is now 3 years old. Therefore, Change the name. hahahaha!!
Pointless isn't it?
The chatbox isn't too blinding is it?
Friday, January 26, 2007
deep thought
It's good to meet up with the people you hung aroud in highschool. You never really thought about how long you'd really be friends with them. They come and they go. Like butterflies in your living room. There one day and gone the next or maybe even worse, lying on the ground lifeless. Dead. You never want that to happen to anyone you know. Even if you hate them.
A few shining faces that you recognise is all it takes to make you think life ain't all that bad. A few friendly faces that make you think scum is gold. For the moment that is. But the smiling faces would sooner or later go away. The people leave. Not forever but just long enough to show you that life is meaningless. Scum is scum and there was nothing you could ever do about it.
People tell you about these things and most times you shrug it off as if they've never seen the light of day and smell the flowers along the way. Cynics. Always there to blow you off balance the last minute. You live life always happy. Without fear of anyone or anything. The thought of death so far and distant that you almost never think about it. The almost refering to when you had funerals of people you hardly ever knew who had passed away. not leaving a single scartissue on your beating, jovial heart.
But that's never the case. You wake up one day feeling like the world was gonna end that there was nothing you could do about it. Nothing you could do about anything. You didn't control anything. You realised that everything controlled you. Not unlike a puppet. Sometimes it seems as if these days last forever, sometimes you snap out of it and sometimes you never do. That's the big D word isn't it? Depression. You can see yourself so pumped up with so much of prozac just so that you could consider coming out to face the world. You see the bottom of every barrel and the most you could do was wish everyone a good day. Good day. What good does everyone see in a good day. What is a good day?
Nothing makes you happy anymore. you get nagged incessantly for everything you do, don't do or even thought about doing. You can't sit still, stand up, can't even walk around. You can't think straight. You walk like a drunkout of a bar after a fight.
Then two neon glowing light comes at you and smashes you into an oblivion and at that moment in time you realise. You could've done more. You could've made a few people happy. You could've made yourself happy. But it's all over now. It's too late even to pray for yourself but you pray anyway. It's a start.
You wake up from the ringing of your cell phone and it's all a horrible nightmare. You spring off your bed happy to pick it up and it's the endless cycle. No guilt, no overbearing emotion. You have friends that take care of you. People you know who need you. People depend on you and there's nothing better than feeling dependable. You smile and and say hi to the other end of the line. Its nice to know you're needed.
_________________________________________
Note:
I'm not emo-ing. Just watched 'Goodfellas' on the advice of Vegeman. It's good stuff... Didn't realise how enjoyable mob movies are. The voice-over was awesome so can you imagine doing a very solemn voice in your head while reading the above? Gives you chills doesn't it?
To my darling Mutiarans... the pictures from the other day are posted nicely on my Facebook Albums. So go get Facebook so you can join in the festivities!
Memo: Remember people! You're ALIVE and it's all that matters.
A few shining faces that you recognise is all it takes to make you think life ain't all that bad. A few friendly faces that make you think scum is gold. For the moment that is. But the smiling faces would sooner or later go away. The people leave. Not forever but just long enough to show you that life is meaningless. Scum is scum and there was nothing you could ever do about it.
People tell you about these things and most times you shrug it off as if they've never seen the light of day and smell the flowers along the way. Cynics. Always there to blow you off balance the last minute. You live life always happy. Without fear of anyone or anything. The thought of death so far and distant that you almost never think about it. The almost refering to when you had funerals of people you hardly ever knew who had passed away. not leaving a single scartissue on your beating, jovial heart.
But that's never the case. You wake up one day feeling like the world was gonna end that there was nothing you could do about it. Nothing you could do about anything. You didn't control anything. You realised that everything controlled you. Not unlike a puppet. Sometimes it seems as if these days last forever, sometimes you snap out of it and sometimes you never do. That's the big D word isn't it? Depression. You can see yourself so pumped up with so much of prozac just so that you could consider coming out to face the world. You see the bottom of every barrel and the most you could do was wish everyone a good day. Good day. What good does everyone see in a good day. What is a good day?
Nothing makes you happy anymore. you get nagged incessantly for everything you do, don't do or even thought about doing. You can't sit still, stand up, can't even walk around. You can't think straight. You walk like a drunkout of a bar after a fight.
Then two neon glowing light comes at you and smashes you into an oblivion and at that moment in time you realise. You could've done more. You could've made a few people happy. You could've made yourself happy. But it's all over now. It's too late even to pray for yourself but you pray anyway. It's a start.
You wake up from the ringing of your cell phone and it's all a horrible nightmare. You spring off your bed happy to pick it up and it's the endless cycle. No guilt, no overbearing emotion. You have friends that take care of you. People you know who need you. People depend on you and there's nothing better than feeling dependable. You smile and and say hi to the other end of the line. Its nice to know you're needed.
_________________________________________
Note:
I'm not emo-ing. Just watched 'Goodfellas' on the advice of Vegeman. It's good stuff... Didn't realise how enjoyable mob movies are. The voice-over was awesome so can you imagine doing a very solemn voice in your head while reading the above? Gives you chills doesn't it?
To my darling Mutiarans... the pictures from the other day are posted nicely on my Facebook Albums. So go get Facebook so you can join in the festivities!
Memo: Remember people! You're ALIVE and it's all that matters.
Wednesday, January 24, 2007
gamarjobat strikes again
Yes they will... and this time, I'll be here to watch them. *grins*
Gamarjobat are 2 japanese guys with mohawks and do not utter a single word (or grunt) on stage and yet can still grab the audience into a hearty guffaw. Alangkah sedihnya the tickets cost between 50 to 90 ringgit... How sad a life that of a student hell bent of theatrics is unable to seek justice because ticket prices fly high...
Speaking of theatrics... go click on this link. http://www.framleyexaminer.com/pages/classified.html
It is a class act. More like class read but hey... It's funny stuff!
2 words for today:
1. Penultimate
2. Omnipresent
God is omnipresent in all but the minds of the penultimate criminal?
Well, whatev.
Law ball you guys!!! Date or no date?
A parting note: Eggtart! (inside joke, for further information please ask)
Gamarjobat are 2 japanese guys with mohawks and do not utter a single word (or grunt) on stage and yet can still grab the audience into a hearty guffaw. Alangkah sedihnya the tickets cost between 50 to 90 ringgit... How sad a life that of a student hell bent of theatrics is unable to seek justice because ticket prices fly high...
Speaking of theatrics... go click on this link. http://www.framleyexaminer.com/pages/classified.html
It is a class act. More like class read but hey... It's funny stuff!
2 words for today:
1. Penultimate
2. Omnipresent
God is omnipresent in all but the minds of the penultimate criminal?
Well, whatev.
Law ball you guys!!! Date or no date?
A parting note: Eggtart! (inside joke, for further information please ask)
Sunday, January 21, 2007
scuse me while i kiss the sky
I wanna learn Jimi Hendrix's Purple Haze!!! *bawls*
Weekend was fun with nothing but movies and parties to help you get along... No, no studying here although I know I should. *smirks*
This "chap" (he's had some fruitloops) I know asked me: What's life if it ends one day, and what would define your life?
So here's my answer...
'When life gives you lemons, you throw it at people and hope it gets them in the eyes.'
Life is the carrot being dangled in your face. Life is the thing that forces you to wake up every morning and face the harsh sun. Life is the song that you have to endure. Life is a bitch.
When life ends, either one of two things manifests itself: Either you've done something that effected someone and proved that the world trully did not spend its precious time and space to accomodate you OR you have done nothing but to help yourself with nothing in thought but your own.
My life, to define is quite difficult. So until i've reached many goals, it will never be encompassed in a nutshell.
Love, Sha.
Weekend was fun with nothing but movies and parties to help you get along... No, no studying here although I know I should. *smirks*
This "chap" (he's had some fruitloops) I know asked me: What's life if it ends one day, and what would define your life?
So here's my answer...
'When life gives you lemons, you throw it at people and hope it gets them in the eyes.'
Life is the carrot being dangled in your face. Life is the thing that forces you to wake up every morning and face the harsh sun. Life is the song that you have to endure. Life is a bitch.
When life ends, either one of two things manifests itself: Either you've done something that effected someone and proved that the world trully did not spend its precious time and space to accomodate you OR you have done nothing but to help yourself with nothing in thought but your own.
My life, to define is quite difficult. So until i've reached many goals, it will never be encompassed in a nutshell.
Love, Sha.
Wednesday, January 17, 2007
today has smile series
- I've got class... damnit.
- Well, hey... contract not bad...
- Look! Polls! - Damnit, I have to walk to Wisma HELP from here now?!
- What?! Ms. J still at KPDA?!
- Ooo...
- Whaddaya mean Ms. Nal's not here?
- More Academic Wing members?!
- Such a dunce...
- Crap... crim tuts. - Card! and classes are over for the day!! yay! yay! - Sin Yew gets rid of cards so quickly!
- Ooooo!! this giggly thing is soooooooo 6th grade!!!
- Chillax-ing to the maxima!Faham faham je lah...
Tomorrow I have client councelling... wheeee... I have to go into Professional Zen mode when I wake up. Pretend I'm a young Lord Woolfe or something hahhahhahaha...
Tuesday, January 16, 2007
savoury pancakes
This post will firstly rant about pancakes. Well, not exactly rant lah... more like hero-worship the pancakes.
*laughs, realises she has to get LMS done before anything and scurries off in a huff*
Okay, back! I was talking about idolising pancake towers kan?
The thing is... I wen't to have lunch at Paddington's House Of Pancakes last week and I must say... it is DIVIIIIIIINE!!! Wonder why they didn't open one in Ampang for chrissakes!
*bawls*
Brainfart: Mr. Mark Goh is kinda like Foamy... he talks really fast, really randomly and rants alot.
Oh, oh! Busy gila babiage this week...
Monday - test, Tuesday - LMS group meeting (very the duh kinda meeting), Wednesday - Get formal letters from Ms. Nal after she runs through it/Meeting with Ms. J/Meeting with Shahriz for the sponsorship shindig/PANCAKES/Crim Law tuts with all those cases to read up/Law Ball meeting at 4:30, Thursday - Client Councelling, Friday - LMS from 8 to 10, C&A from 10 to 12.
Okay, I have cases to read and summerise for tomorrow's tuts... God help me.
*laughs, realises she has to get LMS done before anything and scurries off in a huff*
Okay, back! I was talking about idolising pancake towers kan?
The thing is... I wen't to have lunch at Paddington's House Of Pancakes last week and I must say... it is DIVIIIIIIINE!!! Wonder why they didn't open one in Ampang for chrissakes!
*bawls*
Brainfart: Mr. Mark Goh is kinda like Foamy... he talks really fast, really randomly and rants alot.
Oh, oh! Busy gila babiage this week...
Monday - test, Tuesday - LMS group meeting (very the duh kinda meeting), Wednesday - Get formal letters from Ms. Nal after she runs through it/Meeting with Ms. J/Meeting with Shahriz for the sponsorship shindig/PANCAKES/Crim Law tuts with all those cases to read up/Law Ball meeting at 4:30, Thursday - Client Councelling, Friday - LMS from 8 to 10, C&A from 10 to 12.
Okay, I have cases to read and summerise for tomorrow's tuts... God help me.
Sunday, January 14, 2007
don't simply sign things
This post is curtesy of the Exclusion Clause a derivative chapter off the Law Of Contract. Blame them.
The exclusion clause.
Is very, very irritating because the main emphasis is all those grandmother stories on the common law control and statutory control over the thing.
In the common law bit, Lord Denning (the old pissfart with too much to say but is, in all our minds, the greatest man there ever lived to cause so many problems for law students) didn't like the exemtion clauses because it's used by BIG companies to pick on small companies but hang on a moment... What is an exclusion clause?
An exclusion clause is in all factual means a way to get your butt out of trouble with regards to a contract that you may have signmed a fortnight ago. In more refined legal jargon-esque english: a party to a contract may seek to avoid incurring liability for certain breaches of the contract or may specify that their liability for a particular breach in the contract will be limited to whatever they had specified, usually to whatever amount in damages.
Example...
Assuming that you go to to Tioman for a USD 5000 (say that you're an undernourished student with a lack of funds) diving trip and have your trusty underwater camera with you. You snap alot of pictures of very pretty sealife and that harassing moray eel that is particularly camera shy and you're very happy with what you have. Assuming you are using a camera which still uses film. Kodak film. You come back to your country of origin and go to your film developer. A half assed pink-pop bubblegum chewing dolt behind the counter picks up your film and passes you a paper. You sign it. A week later you happily shove your face into the shop and demand your amazingly professional shots and she shrugs and says that she's over exposed it and accidentally left the film in acid so it's now lost forever. You get angry and demand to see the manager to threaten to sue for emotional damages. The dolt behind the counter swings her locks of blonde hair, glares at you in a very cocky manner and points out that you have just signed an exclusion clause which states that the shop bears no liability whatsoever to any film lost or damaged and if so would only replace with another film canister. All you can do now is tell the manager to fire the incompetent little shit and go home morose beating yourself up over a tub of icecream.
Boo-hoo.
Back to the bits from the common law.
Common law...
*read read read squints read mumbles read swears read nods and cracks fingers*
... points out that the bums in the court had made life harder for the BIG firms and probably the rest of us by making questions to regulate an eclusion clause. Firstly, by questioning whether or not the clause had been incorporated into the contract and secondly, whether the words used in the clause can be construed as covering the alleged branch.
There are several ways in which you can incorporate a clause into a contract and they are:
(a) by signature
(b) by reasonable notice
(c) by previous course of dealing
(a) is pretty easy. It means that if you sign an agreement of some sort, you have therefore understood and accepted all terms within that paper even if technically you didn't bother to read anything thats written on it.
See the case of L'Estrange v Graucob (1934) where a woman had signed a hire-purchase agreement for a cigarette vending machine but didn't read it. The agreement had in it, in tiny prints, a large basis of exemption from liability for the product. The machine proved defective and she couldn't do anything about it as she was bound to the clause, and therefore had no remedy.
Of course the rule doesn't apply when there is a misrepresentation as to the nature of the document signed.
See the case of Curtis v. Chemical Cleaning and Dyeing Co. (1951) in which Ms. Curtis had brought a dress to the cleaners where they had asked her to sign a document which exempted the cleaners from being liable for 'any damages however arising'. When she enquired, it was said that the document merely stated that the cleaners would not accept any liability on the sequins and beads on the dress. She signed it. When she came back to collect her dress, there was a new stain which was not there previously but the cleaners denied liability. The Court of Appeal held that the cleaners could not rely on the document since there was a misrepresentation.
(b) means that the terms can oly be incorporarted if the person had enough time to consider them. It very much depends on the mode in which it was presented.
See the case of Parker v. South Eastern Railway (1877) where the palintiff left his bag in the cloakroom and collected a ticket after paying 2p. The front of the ticket had the opening hours of the cloakroom and the words 'See back'. Upon his return, the bag was missing and when he went to claim the amount he only got back 10 pounds since it was written in the back of the ticket. The Court of Appeal stated that the party could have been deemed to have reasonable notice.
Things that should be taken into account would be (1) time of notice, (2) form of the notice and (3) effect of the clause
(1) Olley v. Marlborough Court Ltd. (1949) where a married couple booked into a hotel for a week, and then went to their room. On the wall, they found a notice which states that the hotel was not liable for the loss of the guests' property. Mrs. Olley returned to the room after a day out and found that she had her fur coats stolen. The hotel disclaimed any liability relying on the notice but the Court of Appeal held that the words had not been incorporated into the contract since it came to the Olley's notice too late. The contract was signed at the front desk, and a new term could not be imposed on them when they reached their room.
(2) Chaperlton v. Barry (1940) where the plaintiff had hired 2 chairs and upon hiring had recieved 2 tickets which he kept in his pocket. When he sat down on the chair, it collapsed and caused some injury. He sued the appalent who relied on the fact that on the tickets it stated that they were not liable for 'any accident or damage arising from the hire of the chair'. The Court of Appeal held that the clause was not part of the contract as the ticket acted only as a reciept and the resonable man wouldn't have expected it to contain contractual terms.
(To be continued when I feel like it...)
The exclusion clause.
Is very, very irritating because the main emphasis is all those grandmother stories on the common law control and statutory control over the thing.
In the common law bit, Lord Denning (the old pissfart with too much to say but is, in all our minds, the greatest man there ever lived to cause so many problems for law students) didn't like the exemtion clauses because it's used by BIG companies to pick on small companies but hang on a moment... What is an exclusion clause?
An exclusion clause is in all factual means a way to get your butt out of trouble with regards to a contract that you may have signmed a fortnight ago. In more refined legal jargon-esque english: a party to a contract may seek to avoid incurring liability for certain breaches of the contract or may specify that their liability for a particular breach in the contract will be limited to whatever they had specified, usually to whatever amount in damages.
Example...
Assuming that you go to to Tioman for a USD 5000 (say that you're an undernourished student with a lack of funds) diving trip and have your trusty underwater camera with you. You snap alot of pictures of very pretty sealife and that harassing moray eel that is particularly camera shy and you're very happy with what you have. Assuming you are using a camera which still uses film. Kodak film. You come back to your country of origin and go to your film developer. A half assed pink-pop bubblegum chewing dolt behind the counter picks up your film and passes you a paper. You sign it. A week later you happily shove your face into the shop and demand your amazingly professional shots and she shrugs and says that she's over exposed it and accidentally left the film in acid so it's now lost forever. You get angry and demand to see the manager to threaten to sue for emotional damages. The dolt behind the counter swings her locks of blonde hair, glares at you in a very cocky manner and points out that you have just signed an exclusion clause which states that the shop bears no liability whatsoever to any film lost or damaged and if so would only replace with another film canister. All you can do now is tell the manager to fire the incompetent little shit and go home morose beating yourself up over a tub of icecream.
Boo-hoo.
Back to the bits from the common law.
Common law...
*read read read squints read mumbles read swears read nods and cracks fingers*
... points out that the bums in the court had made life harder for the BIG firms and probably the rest of us by making questions to regulate an eclusion clause. Firstly, by questioning whether or not the clause had been incorporated into the contract and secondly, whether the words used in the clause can be construed as covering the alleged branch.
There are several ways in which you can incorporate a clause into a contract and they are:
(a) by signature
(b) by reasonable notice
(c) by previous course of dealing
(a) is pretty easy. It means that if you sign an agreement of some sort, you have therefore understood and accepted all terms within that paper even if technically you didn't bother to read anything thats written on it.
See the case of L'Estrange v Graucob (1934) where a woman had signed a hire-purchase agreement for a cigarette vending machine but didn't read it. The agreement had in it, in tiny prints, a large basis of exemption from liability for the product. The machine proved defective and she couldn't do anything about it as she was bound to the clause, and therefore had no remedy.
Of course the rule doesn't apply when there is a misrepresentation as to the nature of the document signed.
See the case of Curtis v. Chemical Cleaning and Dyeing Co. (1951) in which Ms. Curtis had brought a dress to the cleaners where they had asked her to sign a document which exempted the cleaners from being liable for 'any damages however arising'. When she enquired, it was said that the document merely stated that the cleaners would not accept any liability on the sequins and beads on the dress. She signed it. When she came back to collect her dress, there was a new stain which was not there previously but the cleaners denied liability. The Court of Appeal held that the cleaners could not rely on the document since there was a misrepresentation.
(b) means that the terms can oly be incorporarted if the person had enough time to consider them. It very much depends on the mode in which it was presented.
See the case of Parker v. South Eastern Railway (1877) where the palintiff left his bag in the cloakroom and collected a ticket after paying 2p. The front of the ticket had the opening hours of the cloakroom and the words 'See back'. Upon his return, the bag was missing and when he went to claim the amount he only got back 10 pounds since it was written in the back of the ticket. The Court of Appeal stated that the party could have been deemed to have reasonable notice.
Things that should be taken into account would be (1) time of notice, (2) form of the notice and (3) effect of the clause
(1) Olley v. Marlborough Court Ltd. (1949) where a married couple booked into a hotel for a week, and then went to their room. On the wall, they found a notice which states that the hotel was not liable for the loss of the guests' property. Mrs. Olley returned to the room after a day out and found that she had her fur coats stolen. The hotel disclaimed any liability relying on the notice but the Court of Appeal held that the words had not been incorporated into the contract since it came to the Olley's notice too late. The contract was signed at the front desk, and a new term could not be imposed on them when they reached their room.
(2) Chaperlton v. Barry (1940) where the plaintiff had hired 2 chairs and upon hiring had recieved 2 tickets which he kept in his pocket. When he sat down on the chair, it collapsed and caused some injury. He sued the appalent who relied on the fact that on the tickets it stated that they were not liable for 'any accident or damage arising from the hire of the chair'. The Court of Appeal held that the clause was not part of the contract as the ticket acted only as a reciept and the resonable man wouldn't have expected it to contain contractual terms.
(To be continued when I feel like it...)
Saturday, January 13, 2007
admirable apparatus
Totally random post for the day before I shower and get to mooting practice. It's 10 to 8am.
guitar, bass, guitar, guitar, bass, drums, guitar, guitar, piano, drums, guitar, guitar, keyboard, cello, cello, piano, bass, bass, DJ, guitar, guitar, saxaphone, guitar, drums, drums, guitar, piano, guitar, flute, guitar, piano, piano...
banyaknya orang main guitar... *gawks*
Actually, banyaknya strings... mana winds lagi? *makes a face*
I fell off my car cos I slipped and now my elbow is like babi hell sakit sial okay?!
Got 2 spots where it's scraped.
Breaking News!
Dad and the lousy bratty brothers are back from the Alps. Joy...
guitar, bass, guitar, guitar, bass, drums, guitar, guitar, piano, drums, guitar, guitar, keyboard, cello, cello, piano, bass, bass, DJ, guitar, guitar, saxaphone, guitar, drums, drums, guitar, piano, guitar, flute, guitar, piano, piano...
banyaknya orang main guitar... *gawks*
Actually, banyaknya strings... mana winds lagi? *makes a face*
I fell off my car cos I slipped and now my elbow is like babi hell sakit sial okay?!
Got 2 spots where it's scraped.
Breaking News!
Dad and the lousy bratty brothers are back from the Alps. Joy...
Thursday, January 11, 2007
the skinny on the band
Got this from some website and I think it's bleeding hilarious!
________________________________________
Via e-mail - and in all caps, not surprisingly - drummer and founding member Skinny weighed in on Milwaukee, Slipknot, growing up angry in Cleveland and running for president.
Q. In ten words or less, why should someone come see Mushroomhead at Summerfest?
A. BECAUSE STAR WARS ALREADY CAME OUT.
Q. What do you know about Summerfest and Milwaukee?
A. ITS GONNA BE HOT, . . . ITS THE 20th LARGESTEST CITY, WITH A POPULATION OF 628,088, IT BECAME A CITY IN 1848, AND HAS A REALLY NICE HARBOR.
Q. What question do you most hate journalists asking you?
A. WHICH LITTLE KID PUSHED THE EVIL WITCH IN THE OVEN?????
Q. So, which little kid pushed the evil witch in the oven?
A. GRETEL.
Q. Who'd win in a fight: Mushroomhead or Slipknot?
A. ALL I KNOW IS I GET COREY (Corey Taylor, Slipknot vocalist).
Q. If you could tour with anyone, living or dead, who would it be and why?
A. SLIPKNOT, SO I GET (to) PICK ON COREY EVERYDAY!!!!
Q. What advice would you give to a young band just starting out?
A. DONT GIVE UP, KEEP JAMMIN, AND DONT RIP OFF OTHER BANDS.
Q. Do you think that being from Cleveland influenced your musical vision?
A. YES, CLEVELAND IS A VERY HEAVY INDUSTRIAL TOWN, LOTS OF (expletive) METAL HEADS, . . . GOD BLESS 'EM.
Q. As a drummer, would you agree with the perception that front men and lead guitarists usually get most of the groupies?
A. YES, PAY NO ATTENTION TO THE MAN BEHIND THE DRUM KIT . . . AS FAR AS GROUPIES GO, . . . THEY CAN HAVE 'EM.
Q. Would you consider running for office?
A. SURE. I'D RUN FOR PRESIDENT, THEY GET GROUPIES TOO, . . . THEY'RE CALLED INTERNS.
_________________________________________________
Yea, that's metal humour... hahahahaha!!! And Mushroomhead Rocks Righteous!
Then in 2004 Waylon took over from J Mann.
________________________________________
Via e-mail - and in all caps, not surprisingly - drummer and founding member Skinny weighed in on Milwaukee, Slipknot, growing up angry in Cleveland and running for president.
Q. In ten words or less, why should someone come see Mushroomhead at Summerfest?
A. BECAUSE STAR WARS ALREADY CAME OUT.
Q. What do you know about Summerfest and Milwaukee?
A. ITS GONNA BE HOT, . . . ITS THE 20th LARGESTEST CITY, WITH A POPULATION OF 628,088, IT BECAME A CITY IN 1848, AND HAS A REALLY NICE HARBOR.
Q. What question do you most hate journalists asking you?
A. WHICH LITTLE KID PUSHED THE EVIL WITCH IN THE OVEN?????
Q. So, which little kid pushed the evil witch in the oven?
A. GRETEL.
Q. Who'd win in a fight: Mushroomhead or Slipknot?
A. ALL I KNOW IS I GET COREY (Corey Taylor, Slipknot vocalist).
Q. If you could tour with anyone, living or dead, who would it be and why?
A. SLIPKNOT, SO I GET (to) PICK ON COREY EVERYDAY!!!!
Q. What advice would you give to a young band just starting out?
A. DONT GIVE UP, KEEP JAMMIN, AND DONT RIP OFF OTHER BANDS.
Q. Do you think that being from Cleveland influenced your musical vision?
A. YES, CLEVELAND IS A VERY HEAVY INDUSTRIAL TOWN, LOTS OF (expletive) METAL HEADS, . . . GOD BLESS 'EM.
Q. As a drummer, would you agree with the perception that front men and lead guitarists usually get most of the groupies?
A. YES, PAY NO ATTENTION TO THE MAN BEHIND THE DRUM KIT . . . AS FAR AS GROUPIES GO, . . . THEY CAN HAVE 'EM.
Q. Would you consider running for office?
A. SURE. I'D RUN FOR PRESIDENT, THEY GET GROUPIES TOO, . . . THEY'RE CALLED INTERNS.
_________________________________________________
Yea, that's metal humour... hahahahaha!!! And Mushroomhead Rocks Righteous!
Then in 2004 Waylon took over from J Mann.
Wednesday, January 10, 2007
monsterme
*growls* *stomps on a flower*
I really am in a prissy mood...
Sharil and Michelle are gone for 6 whole months. I think I ROYALLY SCREWED the Criminal viva. Parents are coming back from vaca. Exams are sort of really near. I need Ben & Jerry's.
Stress gila bab!
Stress = listen to Mushroomhead
I got the firm names that HELP is liasing with for the moment and we'd probably get some much needed moolah for the law ball from them...
Plus points: Mr something is cute in a shy guy kinda way. Should I or shouldn't I? But you see these people and you always think that they're attached to supermodels or something... hahaha!!! Okay, okay, I'll stop with the self mangling.
*grins with evil intent*
sidenote: need to ask wekwek to write a cheque for that UCAS thingummy. Blardyhell...
I really am in a prissy mood...
Sharil and Michelle are gone for 6 whole months. I think I ROYALLY SCREWED the Criminal viva. Parents are coming back from vaca. Exams are sort of really near. I need Ben & Jerry's.
Stress gila bab!
Stress = listen to Mushroomhead
I got the firm names that HELP is liasing with for the moment and we'd probably get some much needed moolah for the law ball from them...
Plus points: Mr something is cute in a shy guy kinda way. Should I or shouldn't I? But you see these people and you always think that they're attached to supermodels or something... hahaha!!! Okay, okay, I'll stop with the self mangling.
*grins with evil intent*
sidenote: need to ask wekwek to write a cheque for that UCAS thingummy. Blardyhell...
Monday, January 08, 2007
random
HAKIM CUTE!
hahahahahahahahahahhaha!!!
*golek golek on the floor*
edit:
I looooove knives
edit edit:
Mushroomhead should come to Malaysia... or at least Singapore... I feel bad having missed Slipknot ady... *cries*
edit edit edit:
*Fumes and kills something* *stomps around* *puts on loud harassing music* *mopes*
hahahahahahahahahahhaha!!!
*golek golek on the floor*
edit:
I looooove knives
edit edit:
Mushroomhead should come to Malaysia... or at least Singapore... I feel bad having missed Slipknot ady... *cries*
edit edit edit:
*Fumes and kills something* *stomps around* *puts on loud harassing music* *mopes*
Saturday, January 06, 2007
new found lagu
I have found/relistened/acquired/newly appreciated more bands to listen to and buy more cd's which is really one of the few things people do nowadays what with itunes and ripping off music from P2P and such since its free. and everyone LIKES free stuff don't they? But there's something about buying a cd or vinyl, tearing apart the wrapping for the first time, and smelling that new cd smell (aside from that all so funktastic album cover/art with lyrics thing. But I digress.
Here are some of the few rediscovered bands...
-Coal Chamber (finally sat down to appreciate it)
-Dry Kill Logic (didn't realise it existed, yea yea its numetal and all... shut it.)
-Tool (long time no hear...)
-Emperor (this is new... *gasps*)
-Mike Patton (You mean, he's NOT in Sepultura? Then what was his voice doing on Kaitamaki? kidding.)
-Jane's Addiction (Never really bothered to sit and stare at this before...)
-Melissa Auf Der Maur (rediscovered for the thousandth time haha.)
Hoyea, remind me to xerox the remaining pastyears from Encik Amir... I swear to God that the cow in the library is using her monopolising powers over and beyond... Gila Babi mahal okay!
Here are some of the few rediscovered bands...
-Coal Chamber (finally sat down to appreciate it)
-Dry Kill Logic (didn't realise it existed, yea yea its numetal and all... shut it.)
-Tool (long time no hear...)
-Emperor (this is new... *gasps*)
-Mike Patton (You mean, he's NOT in Sepultura? Then what was his voice doing on Kaitamaki? kidding.)
-Jane's Addiction (Never really bothered to sit and stare at this before...)
-Melissa Auf Der Maur (rediscovered for the thousandth time haha.)
Hoyea, remind me to xerox the remaining pastyears from Encik Amir... I swear to God that the cow in the library is using her monopolising powers over and beyond... Gila Babi mahal okay!
Wednesday, January 03, 2007
to remind me
Just to remind myself since I haven't got a 2007 calendar yet. Yea, I know... It sucks balls.
(!)No Tutorials for all subjects for first and second week of semester
(!)Time Test for Contract Law on third week
10th Jan - Ed-Board Meeting @ 11am, Viva for Crim Law Assignment @ 3pm
11th Jan - LMS Group Discussion (TBA)
13th Jan - Mooting Practice @ 10 am, Sheryl's Luau @ 7pm
18th Jan - Client Councelling Assessment @ 1:30pm
19th Jan - Submit LMS Assignment @ 11am
20th Jan - Jess's Farewell Party
28th Jan - Illani's Birthday
May be adding new stuff...
Cheers.
FYI: First attempt of dying my hair... myself. I hopes that my head doesn't go blue...
(!)No Tutorials for all subjects for first and second week of semester
(!)Time Test for Contract Law on third week
10th Jan - Ed-Board Meeting @ 11am, Viva for Crim Law Assignment @ 3pm
11th Jan - LMS Group Discussion (TBA)
13th Jan - Mooting Practice @ 10 am, Sheryl's Luau @ 7pm
18th Jan - Client Councelling Assessment @ 1:30pm
19th Jan - Submit LMS Assignment @ 11am
20th Jan - Jess's Farewell Party
28th Jan - Illani's Birthday
May be adding new stuff...
Cheers.
FYI: First attempt of dying my hair... myself. I hopes that my head doesn't go blue...
Monday, January 01, 2007
HAAPEE NUU YAAAA!!!
Happy New Year and Selamat Hari Raya Haji to all!
I hope you have a prosperous and healthy year and all that jazz.
That said, be more generous. Especially to those less fortunate. It would save alot of them from swearing at you.
Here's a recap of the past year that had gone so quickly and left us gasping for breath.
Tnerein lies the good, the bad and the ugly of the human condition and the peoples' society.
Therein lies emotion, either spat out and forced on others or kept in and wished was let loose.
There was regret, there was pain, there was alot of things to look back and muse.
But let's not drawl further. Drum roll please...
Propaganda
Stupid discussions
Aging fears
People leaving
New friends
University
No more college
More peopel leaving
Being a complete eff-tard.
Cherating!
Birthdays
Broke fits
Guitars
Horrid roaches
Free stuff
Assignments
Meetings
Gym
...
And it's all in my blog!
Up next will be pichas of some new years eve lepakings...
Well, as soon as I get em from Nadiah.
Rajaaaaaaaaaaaa of the streeeeeeeeeets?
*laughs like madness*
This years New Years eve:
Went to Suzi's Corner and hung out with Mich, Jack, Nadiah, Usaid, Shravan and Fahmy.
Needed to pee but had to go see Sepehr so decided to squish into Fahmy's car.
Walked through the promenade thingy with all those roamn statues where its naked and was reminded of Mustapha screaming 'HARAM' at it.
Met Sep after some much needed kench-time.
Left in Fahmy's car again.
Drove around and parked at the highway just in time for fireworks.
Left for no specific place.
Drama Drama Drama at lokasi not specified!!!
Left for Alexis.
Had coffee and damn these mat rempits are noisy at the tepi jalan there.
They play some excellent jazzy tunes there... FUNKYAWESOME!!!
Left in Nadiah's, her dad driving and mom and bro in the car as well as Jack, Shravan, Usaid.
We need lifts home because kita yang tak berlesen cannot memandu and it's really sedih.
Now typing on comp wishing everyone a Happy New Year!!!
Love,
Sha
I hope you have a prosperous and healthy year and all that jazz.
That said, be more generous. Especially to those less fortunate. It would save alot of them from swearing at you.
Here's a recap of the past year that had gone so quickly and left us gasping for breath.
Tnerein lies the good, the bad and the ugly of the human condition and the peoples' society.
Therein lies emotion, either spat out and forced on others or kept in and wished was let loose.
There was regret, there was pain, there was alot of things to look back and muse.
But let's not drawl further. Drum roll please...
Propaganda
Stupid discussions
Aging fears
People leaving
New friends
University
No more college
More peopel leaving
Being a complete eff-tard.
Cherating!
Birthdays
Broke fits
Guitars
Horrid roaches
Free stuff
Assignments
Meetings
Gym
...
And it's all in my blog!
Up next will be pichas of some new years eve lepakings...
Well, as soon as I get em from Nadiah.
Rajaaaaaaaaaaaa of the streeeeeeeeeets?
*laughs like madness*
This years New Years eve:
Went to Suzi's Corner and hung out with Mich, Jack, Nadiah, Usaid, Shravan and Fahmy.
Needed to pee but had to go see Sepehr so decided to squish into Fahmy's car.
Walked through the promenade thingy with all those roamn statues where its naked and was reminded of Mustapha screaming 'HARAM' at it.
Met Sep after some much needed kench-time.
Left in Fahmy's car again.
Drove around and parked at the highway just in time for fireworks.
Left for no specific place.
Drama Drama Drama at lokasi not specified!!!
Left for Alexis.
Had coffee and damn these mat rempits are noisy at the tepi jalan there.
They play some excellent jazzy tunes there... FUNKYAWESOME!!!
Left in Nadiah's, her dad driving and mom and bro in the car as well as Jack, Shravan, Usaid.
We need lifts home because kita yang tak berlesen cannot memandu and it's really sedih.
Now typing on comp wishing everyone a Happy New Year!!!
Love,
Sha
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