exemption clauses incorporation

Question 1

3 step approach for exemption clauses

Answer 1

incorporation
construction
legislation

Question 2

what does incorporation mean

Answer 2

making sure that the terms are part of the contract and are binding

Question 3

case for incorporation

Answer 3

poseidon freight forwarding co LTD v Davies turner southern- clauses limiting liability were on the back and sent by fax, papers were never turned over so contract did not contain exclusion clause

Question 4

types of incorporating terms

Answer 4

signature
reasonably suffient notice
consistent course of dealing

Question 5

signature

Answer 5

any form of indication that you accept
L’Estrange v F Graucob- cigarrette machine did not work, signed exception clause if machine did not work so bound

Question 6

defences at common law to escape binding by signature

Answer 6

claims of fraud
misrepresentation- curtis v chemical cleaning and dying (damage to wedding dress)
Non est Factum

Question 7

criticisms of a signature

Answer 7

Mccutcheon v David Macbrayne- artificial and does not reflect intention to be bound to terms

Question 8

reasonably suffient notice

Answer 8

would the reasonable person notice the document contains these terms- parker v S E railway co (lost bag at railway)

Question 9

timing to avoid limitation clauses

Answer 9

terms must be introduced before or at the time of the contract
thornton v shoe lane parking- sign limiting liability was inside carpark but contract was formed at the barrier so clause was given after parking

Question 10

the type of document to avoid limitation clauses

Answer 10

would a reasonble person assume the type of document would contain a limitation clause
chapleton v Barry- ticket for deckchair was not a document you would expect to contain contractual conditions on

Question 11

red hand rule to avoid limitation cluases

Answer 11

denning- if a term is unusual it needs to be in red on the front of the document with a red hand pointing to it

Question 12

case for red hand rule

Answer 12

spurling v bradshaw

Question 13

consistent course of dealing

Answer 13

based on previous dealing between the parties
terms in new contracts may remain the same as in previous contracts
spurling v Bradshaw- limitation clause previously used was proven to be intended to be used in a future contract

Question 14

how to determine consistency

Answer 14

Mccutcheon v david Macbrayne-
whether at the time each party is entitiled to infer from previous cases that the standard clause would be part of the contract