Express Terms

Question 1

What are the 4 ways express terms can be incorporated into a contract?

Answer 1

1) A signed written contract

2) Incorporation by notice

3) Incorporation by course of dealing

4) Other ways of agreeing express terms

Question 2

Are all terms in a contract binding?

Answer 2

Yes

Question 3

If the document signed was not one which was intended to have any contractual effect, what will this mean for the terms within it?

Answer 3

Won’t form part of the contract

Question 4

if reasonable steps have been taken to bring them to the claimant’s attention, will the terms form part of the contract?

Answer 4

Yes

Question 5

what amounts to reasonable notice? (when looking at how it was brought to the claimant’s attention)

Answer 5

• dictated by the facts of the case\
• terms may be incorporated by reference to a different document

Question 6

Example of insufficient notice? Think Sugar v London, Midland & Scottish Railway

Answer 6

Clause illegible because it wasn’t referred to on the front of the ticket

Question 7

What should a party do if they want to incorporate terms that are particularly adverse to the other party?

Answer 7

it must clearly bring these to the other party’s attention - where it’s particularly onerous = needs to be ‘printed in red ink, with a red hand pointing to it, or something equally startling’ to give sufficient notice.

Question 8

Will a clause be binding if communicated only after the contract is made?

Answer 8

No - for it to be incorporated reasonable notice of it must be given before/ at time of contracting.

Question 9

What was the outcome of Thornton Shoe Lane?

Answer 9

As the contract had been formed before the machine produced the ticket - conditions referred to on the ticket (or later) = not incorporated into the contract.

Question 10

Therefore, terms will only be incorporated by notice if the document giving notice was intended to have….

Answer 10

contractual effect

Question 11

How will a term be implied into a current transaction by a course of dealing?

Answer 11

If clause brought to the notice of other party during previous dealings

Question 12

For a clause to be included through a course of dealing, what is required the course of dealing to be?

Answer 12

a) consistent over period of time
= written terms to have been relied upon were consistently incorporated in the past

b) regular
= NOT EST if parties have contracted w each other on only a few occasions over a number of years

• 3/4 transactions over a period of 5yrs years = insufficiently regular to establish a course of dealing.
• 3/4 times per month + 5 instances over 13 months respectively = sufficiently regular

Question 13

Examples of other ways of agreeing express terms (provided parties adequately express an intention to be bound by those terms):

Answer 13

• in a conversation or verbal exchange;
• terms set out in writing (eg email) + other party agreeing (by expressing agreement in reply by email)

Question 14

What is an ‘entire agreement’ clause?

Answer 14

provides that a partic doc/ set of docs constitutes the entire agreement between the parties.

Question 15

What is a boilerplate clause – ‘entire agreement’ clause?

Answer 15

parties agree that this agreement constitutes the entire agreement between them, + supersedes any previous understandings +/or arrangements between them, whether oral/ written.

Question 16

When will courts will uphold a boilerplate clause?

Answer 16

where they acc = attempt to avoid any misunderstanding about the scope of the parties’ agreement.