• 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 defense.
My advise is based on the decision in Karsales (Harrow) Ltd V. Wallis whose facts were substantially similar.