Peter reads an advertisement in the new vision of a special x-mas discounted fare of shs 20000 only to Arua by the executive coach bus company but on reaching he was told that the offer was only for the first ten customers and he was not eligible which made him pay 40000 for a regular seat. His suitcase with clothes valued at 1000000shs was given to another passenger whose suitcase was given to peter since they were the same.
He reports to the company but the company denies because the icket had a clause that the company is not liable for to any loss of passengers laggage.
1 -Whether there was avalid contractual engagement between peter and the executive bus company?
2-Whether executive bus company can rely on exemption clause to escape liability?
3-Whether the executive bus company is vicariously liable?
4-Whether Peter has any remedies?
1-The contracts act, 2010
2-Common law and doctrines of equity
According to the contracts act 2010 defines a contract as an agreement made with the free consent of parties with capacity to contract, for a lawful consideration and ith a lawful object, with the intention to be legally bound. For a contract to be valid we have to consider the following; An offer; according to the contracts act 2010 defines offer as the willingness to do or to abstain from doing any thing signified by a person to another, with a view to obtaining the assent of that other person to the act or abstinence.
There fore a contract can be made to an individual or the whole world and this case the offer was there and was made to the whole world as in the case of carill vs carbolic smoke ball company where the defendants advertised an offer of 00 pounds to any user of their carbolic smoke ball who caught influenzer after using it, they also stated that they had deposited a sum of 100 pounds with the bank to show their sincerity in the matter. The plaintiff bought the smoke balls but caught influenzer . he sued the defendant for 100 pounds who had arguments that; there was no contract but mere intention, that even if there was an offer it couldn’t be binding because it had not been made toa particular person, that there was no communication of acceptance. Court held that according to the language of the dvertisement there was an offer and that this offer was to any one who performed the conditions of the advertisement and the actual performance constituted acceptance which led to a contract.
There fore in use of the above case there was an followed the conditions of the advertisement acceptance was also there and also mere fact that peter bought another ticket worth 40000 shs shows that consideration was there. And also there was no proof that there was no capacity to contract. Also by referring to an invitation to treat meaning that an invitation to offers but not an offer.
As in Graig vs Gough 1896 AC 325 court held that the issue of a catalogue containing the discreption of goods and the prices is not an offer but an invitation to treat. It may lead to an offer when a potential buyer oders for any of the goods and the order is accepted by the seller. Therefore in peters case the mere fact that he bought another ticket indicates that there was an offer between peter and the executive coach bus company.
An exemption clause refers to an agreement in a contract that stipulates that a party is limited or excluded from liability. Therefore in an exemption clause we look at the ncorporation in that was the clause included in the contract or not. In this case the company had words written at the back of the receipt that the executive bus company is not liable for to any loss of laggages.
In the case of Olley v Marlborough court 1949, where the court held that the exemption clause was too late, not only that but also in Thomton v shoe lane parting 1971 where the court held that party must have knowledge of the terms of the exemption clause, also in Hollier v Rambler motor 1972 where the court held that there was no course of dealing at the time and that he defendants could not exclude them selves from liability. Therefore these cases show that Peter had no knowledge on the terms of the clause, hence the company had no excuse of escaping liability.
Also the executive bus company can be vicariously liable though exchanging of peters bag was done done by the conductor. This can be proved in a case of George Bwanika v R 1957 EA 279 where Bwanika was operating along masaka road as a conductor . The vehicle he was using belonged to a company licenced to carry 41 passengers and when it was found carrying 71 passengers by the traffic officer he as charged with the company because his acts were deemed to be the acts of the company hence the company was held criminally responsible vicariously.
Therefore the act of the conductor in peters case where he exchanged his bag with some ones is deemed to be the actor of the executive coach bus company. We can also say that the company was negligent for not tagging the bags of the passengers hence it should be liable for what happened.
From what we have seen I advise peter to sue the company hence the executive coach bus company should pay for all the damages and costs faced by Peter.