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This problem is based on the enforcement of exemption clauses with specific reference to
fundamental breach or obligation theory, which is to the effect that an exemption clause will
not generally be given effect is doing so amounts to a fundamental breach or enables the
stronger party evade the fundamental obligation of the contract.
In this case K. Kemei bought a new and nice looking car from G.N. Motors Ltd, but the
motor vehicle supplied by the seller is fundamentally different in that is second hand and
has many mechanical defects.
This obviously amounts to a fundamental breach of contract by the company and K. Kemei
has reason to feel aggrieved.
Giving effect to the exemption clause would enable G.N. motors Ltd evade the
fundamental obligation of the contract.
My advise to K. Kemei is to refuse to take delivery of the motor vehicle and sue the
company in damages for the breach. The company cannot effectively rely on the exemption
clause as a defence.
My advise is based on the decision in Karsales (Harrow) Ltd V. Wallis whose facts were
substantially similar.
maurice.mutuku answered the question on May 3, 2018 at 06:50
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