CONTRACT LAW L4 - Terms - EXPRESS TERMS Flashcards
What is the process of ascertaining express terms of a contract? (1)
A search to ascertain what an objective observer would think that the parties intended to be bound by.
What does the signing of a written contract usually show? (1)
An intention to be bound even if a party singing has not read the terms or has not understood what they mean.
How can terms also be incorporated by notice? (1)
By one party notifying the other party of them.
What did the case of PARKER V SOUTH EASTERN RAILWAY establish? (1)
Terms will form part of a contract if reasonable steps have been taken to bring them to the claimant’s attention.
What must happen for a clause to be incorporated into a contract? (2)
Reasonable notice of it must be given before or at the time of contracting. Any clause will not amount to a binding term if it is communicated only after the contract is made.
How does the case of THORNTON V SHOE LANE PARKING 1972 demonstrate reasonable notice? (5)
Claimant drove his car into a multi-storey car park and ticket was issued ‘subject to conditions of issue as displayed on the premises.’
Claimant drove into the car park without reading the words on the ticket or those displayed on the sign and parked his car.
On return he paid the necessary charge but then was severely injured attempting to put his belongings in the car.
It was held the customer is bound by the terms as long as they are sufficiently brought to his notice before-hand.
He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late and the contract has already been made.
When will terms be incorporated into a contract by notice? (1)
Only if the document giving notice was intended to have contractual effect.
How does the case of CHAPLETON V BARRY UDC demonstrate contractual effect? (3)
Claimant hired a deck chair and was given a ticket.
On the back of the ticket was additional terms and conditions.
These were held to be not binding because the ticket was not intended to have contractual effect and an observer would understand it to be a receipt only.
What is meant by incorporation by a course of dealing? (1)
It is often the case that the contract in question is one of a number of contracts entered into by the parties.
What may be implied when a clause has been brought to the notice of the other party during previous dealings? (3)
It is implied into the current transactions to give effect to the presumed intentions of the parties, even though it has on this particular occasion been omitted. It must be shown in the course of dealing has been consistent over a period of time.
How does the case of MCUTCHEON V DAVID MACBRAYNE 1964 demonstrate incorporation by a course of dealing? (1)
An attempt to incorporate by course of dealing was unsuccessful because of written terms relied upon had not been consistently incorporated in the past.
How can express terms be incorporated? (2)
By verbal exchange or set out in writing and the other party agreeing to those.
What is an exclusion clause? (1)
Where a party seeks to limit or exclude liability for its own breach by terms incorporated by reference or by a course of dealing.
What does it mean by ‘exclusion clauses are often onerous’? (1)
They can leave one party with a dramatically reduced remedy than would otherwise be the case in the event of breach.
What is a possible boilerplate clause? (3)
An ‘entire agreement’ clause. The parties agree that this agreement constitutes the entire agreement between them, and supersedes any previous understanding and / or arrangement between them, whether oral or written.
