Common Law Control of Exclusion

Question 1

Whether the agreement was signed

Answer 1

where a party has signed an agreement or contract , they are bound by it.

Question 2

L’Estrange V Graucob

Answer 2

She was bound by the contract as she signed it

Question 3

If a query is made before signing or request for clarification

Answer 3

then oral statement can override the written clause

Question 4

Incorporation by notice

Answer 4

you give notice to the other party about the existence of the exclusion clause

Question 5

you must give the other party notice of exclusion clause

Answer 5

before they enter the contract

Question 6

Kaye V Nu Skin Uk

Answer 6

If term is harsh , it must be brought to the attention of the other party

Question 7

Terms cannot be incorporated into contract after acceptance unless:

Answer 7

there is a new contract which varies the original contract
If it specifies in original contract that there can be variation in terms

Question 8

Olley V Marlborough Court Hotel

Answer 8

The clause was not incorporated into the contract as C were unaware of the clause when they formed the contract.

Question 9

Tickets may incorporated terms if it is reasonable to expect that back of the ticket will be checked for terms

Answer 9

If its not reasonable for a party to expect terms on the back they won’t be incorporated into the contract

Question 10

Chappleton V Barry Urban District Council

Answer 10

couldn’t rely on this clause as the reasonable person would have disregarded the ticket as a receipt and wouldn’t checked the back

Question 11

Thompson V London Midland and Scotland Railways Co

Answer 11

Terms will be incorporated if reasonable steps have been taken

Question 12

Incorporation By previous dealings between parties

Answer 12

Terms can be incorporated into a contract if the parties have past dealings with each other providing these dealings are consistent

Question 13

McCutcheon V David MacBrayne

Answer 13

This terms was not incorporated into the contract because the prior dealing were not consistent.

Question 14

Contra Proferentem Rule

Answer 14

When an exclusion or limitation clause is unclear. Prevents terms being given a wide meaning. When words are ambiguous , courts will decide if D can rely on the term.

Question 15

when there is any doubt about the meaning of a term in a contract

Answer 15

the words must be interpreted against the person who is trying to rely and use the term

Question 16

White V John Warwick

Answer 16

The COA held that the ambiguous wording out of the exclusion clause did protect them from a claim in Contract Law but they were still liable in negligence

Question 17

A oral statement is likely to be incorporated as a term if

Answer 17

Particular importance - Bannerman V White
More knowledge of specific trade - Schawel V Reade
Delay - Routledge V Mickey

Question 18

Less likely to incorporate terms due to previous dealings

Answer 18

If one party acts like a consumer - Hollier V Rambler
More likely in the same industry - British Crane Hire V Ipswich Plan Hire