Contract Cases: Incorportation Flashcards
Authorities for the Parole Evidence Rule: this rule excludes any testimonary or oral evidence. However, it only applies for oral contracts.
Shogun Finance: basic statement of rationale. “‘[The Parol evidence rule] is fundamental to the mercantile law of this country.. the certainty of the contract depends on it…”
Bank of Australasia v Palmer: authority for the oral evidence distinction.
Primary Authority for incorporation by signature.
(1) Signature (L’Estrange v Graucob). This is the clearest form and is thus the hardest to challenge, even with small print and knowing abuse. Old woman signs contract without knowing there was no warrantee despite other knowing of this mistake.
Reasonableness Authority
Parker v South Eastern Railway: a person is bound if they either know of the conditions or if they were reasonable given notice of them. Here, though tough, the conditions were on the back of a ticket and thus fairly noticeable.
Exceptions to Signature
UCTA; Non Est Factum (Gillick); Inducement; and if the document being signed does not purport to have contractual effect (Grogan v Robin: time sheet not a contractual document)
Timing authorities for Incorporation by notice
Thornton v Shoe Lane (notice inside parking lot - he already contracted when he bought the ticket at the automatic kiosk. Thus, though the ticket said the terms were inside, it was too late by that stage as you cannot negotiate with a ticket machine)
Olley v Marlborough (hotel case where notice was in the room - he had already signed at the hotel desk)
Fairness Scale for Notice
Interfoto: extreme charges for holding rented photo material was written in small print on the bag. This was not sufficient to bring it to the attention of the borrowers.
“the more outlandish the clause the greater the notice which the other party, if he is to be bound, must in all fairness be given…”
““English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness. Many examples could be given.”
Judicial Difference in opinion: Facts are key
AEG v Logic Resource: whether a term to require payment for shipping for repairs of broken goods was fair. Held term was onerous as there was no other option but to return the goods. Lord Hobhouse doubts this is necessary anymore as it would cause parties to comb through contracts and UCTA does its job.
Onerous terms: context is key
Goodlife v Hall Fire Protection: context is key when ascertaining whether a term is onerous or not. In the current instance, the term was not onerous even though it was an exclusion cause for losses caused in a fire. The product was a fire supression system, but it was reasonable as it was a one-off purchase, the terms were clear on the front of the contract, UCTA would cover it.
Incorporation by course of dealing
McCutcheon v David: using a ferry occasionally could not amount to a regular course of conduct as they did not always sign the same forms and it wasn’t even that regular, only amounting to three or four times in total.
Incorporation: what are the different ways a contractual term can be incorporated? How do they differ in normative character?
Incorporation by signature: see equitable remedies in the form of non-est factum; UCTA; and fraud/misrep as this is totally iron-clad.
Incorporation by notice: see the way courts will strike terms out by not incorporating them (red hand rule). Less important now that UCTA is on the scene.
Limitation clauses: UCTA and Incorporation
Schepps v Fine Art Logistics: because F had not supplied the terms to S, and could not suppose S was dealing with F on the basis of their terms (how could they know?), S was not bound. This was so even though S suspected there was a limitation clause, they just didn’t know what it was. Per UCTA, if they had properly brought it to the attention of S then it would be reasonable as: (A) F dealt with a varying range of items in value and this was the best way of capping liability; (B) S could get insurance themselves (s2 1977 Act).
Onerous rules: relative effect on contractee
O’brien v MGN: mirror rules in paper saying ‘normal mirror rules apply’ for lottery not unreasonable as lottery was giving O’B a windfall and he had done very little (spent a few pennies) to gain the benefit. There was no increased burden, nor does it limit liability. Sir Evans disagreed because he thought it was unrealistic to get access to back issues.
Incorporation by a course of dealing: knowledge and frequency
Hollier v Rambler Motors: question of whether exclusion of liability was incorporated by standard terms by course of dealing. Held it was not as it had only been 3/4 years of visits over 5 years and the signing of conditions had not been consistent. Also, the knowledge of the signor is irrelevant: what is important is the perspective of the dealer who assumes the signor is assenting to his terms by signing over and over again, to the extent they assume they have a standard term.
