Express Terms Flashcards
What is an express term?
It is a term which has clearly and distinctly been discussed and agreed between parties.
In disputes, courts will need to establish whether the claimant had notice of term.
Notice can be issued:
1. Written document, containing contractual terms, and signed.
2. One party attempts to incorporate written terms into an oral contract
What are exclusion and limitation clauses?
Exclusion clause attempts to restrict or remove parties liability in event of a breach of contract - only if it is a term.
Limitation clause attempts to cap or limit the total amount which a party might be liable in event of breach.
What is the rule relating to signed written documents containing contractual terms?
Signed documents deemed to be part of the contract even if they have not been read.
As set out in CASE: L’Estrange v F Graucob
The exception to this rule is if the signature has been obtained as a result of mistake or misrepresentation.
CASE: Curtis v Chemical Cleaning
CASE: Curtis v Chemical Cleaning
(The rule of signed written documents)
Claimant taken wedding dress to defendant.
Claimant asked to sign receipt and asked why she needed to.
Defendant said company exempted from liability for any damage for beads and sequins.
The dress was badly stained.
Held defendant could not reply on exclusion term as informed Claimant incorrectly and misrepresented.
How can written terms be incorporated into oral contracts?
- Notice
- Consistent course of dealing
- Common understanding of parties
How can written terms be incorporated into oral contracts through notices?
Party gives actual notice of terms - meaning that claimant knew about terms (either by reading or being told)
It is important that the term is brought to the attention of claimant at the time of making the contract.
CASE: Olley v Marlborough Court Hotel
Even if the claimant didn’t know about the term before or at the time - may still be bound - if reasonable notice can be shown to have been given.
CASE: Parker v South Eastern Railway Company
If a notice is clearly displayed - the fact a specific person cannot read it (blind) - will not prevent notice from being incorporate as valid term.
A person can’t “escape” having to abide by clause just because failed to read it.
A person who is blind will know this is the case and should therefore have a plan in place so they know what they are agreeing to.
CASE: Olley v Marlborough Court Hotel
(Given notice of written terms in oral contract)
Couple booked into a hotel and paid in advance.
Arrived at room to a notice saying that they are not responsible for lost or stolen items.
Fur coats were then stolen.
Held that the hotel could not escape liability for loss because the term of the hotel room wall was communicated too late; contract was made at reception desk.
CASE: Parker v South Eastern Railway Company
(Given notice of written terms in oral contract)
Claimant left bag at luggage office and was handed a ticket.
Ticket had a number, date and the words “see back”
On the back - clause stating could not be reasonable for package exceeding £10
Bag was lost and the claimant claimed £24
Held that the test was not whether claimant had read the clause, but whether the defendant had taken reasonable steps to bring notice to claimants attention.
What are the three factors a court will consider when deciding whether or not reasonable notice has been given?
- Timing of document
Term can’t be part of the contract unless notice of it was given at the time of making contract
CASE: Thornton v Shoe Lane Parking
- Type of document
Document must be expected to contain contractual terms.
E.g if one party gives a document that does not appear to be part of contract - not entitled to claim that it is binding
CASE: Chapelton v Barry Urban District
- Type of clause
The more unusual the clause - the more notice expected from a person wishing to reply on it.
CASE: Interfeto Picture Library v Stiletto Visual Programmes
CASE: Thornton v Shoe Lane Parking
(Given notice of written terms in oral contract)
Car parking ticket issued by machine at entrance.
Ticket stated, “subject to conditions as displayed on premises”
Contract former at the moment the drive took the ticket but the notice displaying exclusion clause which was after the contract formed.
CASE: Chapelton v Barry Urban District
(Given notice of written terms in oral contract)
Claimant hired deckchair from defendant and handed a ticket:
Claimant did not read ticket which stated that the council would not be liable for damage.
Deckchair collapsed and claimant was injured.
Court held that the deckchair ticket could not be expected to contain contractual terms so claimant could claim for damages.
CASE: Interfeto Picture Library v Stiletto Visual Programmes
(Given notice of written terms in oral contract)
Defendant borrowed claimants photos for presentation.
Claimant included a note that they needed to be returned in 14 days.
Small print on the back said fee was £5 would be charged every day after 14 days.
Defendant got a bill for £3500
Held not binding as unusual term should be brought to the defendants attention more explicitly.
How can written terms be incorporated into oral contracts through consistent course of dealing?
Term may be incorporated as parties dealt with each other on the terms before.
CASE: J Spurling v Bradshaw
Claimant previously dealt with defendant.
Held the previous document containing contractual terms are incorporated into present contract as a result of previous dealings.
Rule rarely used to contracts involving consumers.
Case law found courts reluctant to apply when parties are not in the same trade with equal bargaining power.
How can written terms be incorporated into oral contracts through common understanding of parties?
Written terms can be incorporated into oral contracts where there is a common understanding between parties.
CASE: British Crane Hire v Ipswich Plant Hire
Term incorporated as parties were in the same trade and clauses were commonly used in that industry.
