Common law terms

Question 1

L’estrange

Answer 1

Courts love signed contracts

- it is defo incorporated once you sign the document even though it is in ‘regrettably small print’

Question 2

Jacobs v Batavia

Answer 2

Parole evidence rule (don’t look beyond 4 corners of document if it purports to include all terms)

Question 3

Curtis v Chemical Cleaning

Answer 3

EXECPTION TO PAROLE EVIDENCE

- if they made an oral misrep which ‘but for’ that, would not have entered into the contract

Question 4

Cunliffe Owen v Teatherd Greenwood

Answer 4

implied terms by custom must be:

1) certain
2) notorious
3) binding
4) reasonable
5) consistent with express terms

need not be obvious to parties as long as its general commercial practice

Question 5

implication by law

Answer 5

SOGA tenancy employment

Question 6

Implication by fact

Answer 6

Business efficiency - The Moorcock

Officious bystnader - Shirley v Southern Foundaries

Question 7

AG beleze

Answer 7

hoffman restated the law saying instead of implication by fact we should combine the two tests and just use an objective test for deciding if terms are implied

Question 8

Lovell & Christopher v Wall

Answer 8

interpretation of terms used to be very litreal

Question 9

L Schuler

Answer 9

interpretation literally can lead to unfair results (pink floyd applied)

Question 10

Olley v Marlborough

Answer 10

hotel room had terms in but this notice came too late and after contract had been formed
(insufficient notice)

Question 11

Thornton v Shoe Lane Parking

Answer 11

notice for terms should be given before or at contract formation

• otherwise not incorporated
• here contract was formed when he paid for ticket
• in the car park, contract already concluded

Question 12

Chapleton v Barry DC

Answer 12

mere reciept; no reason to assume it is a contractual document

Question 13

Parker v SE Railway

Answer 13

dicta: would a reasonable person be notified of the existence of the excemption clause?
assume: reader can read english and understand

Question 14

Thompson v LM&S Railway

Answer 14

very low threshold; here, terms were in p552 of another document and that was deemed acceptable (but it did tell you where to find the terms)

Question 15

Henderson v Stevenson

Answer 15

didn’t say ‘see back’ so it was not acceptable

Question 16

Richardson Spence v Rowntree

Answer 16

tic was folded over and terms were obscured by red ink stamp so it was insufficient notice to incorporate

Question 17

Thornton

Answer 17

the more onerous the clause is the more notice needs to be given

Question 18

Finney Lock Seeds

Answer 18

freedom of contract preserved by limiting freedom of contract in standard form contracts

Question 19

Andrew Bro v Singer & Co

Answer 19

CONTRA PROFERENTEM

- interpretation against draftsman if there is any ambiguity at all

Question 20

Canada Steamship

Answer 20

for negligent liability:

1) express exception covers liability
2) no express exception: limitation clause for negligence covers liability
3) no express exception: exclusion clause for negligence does not cover liability