Incoporation of Terms Flashcards
Totality of evidence must be considered
Heilbut Symons and Co v Buckleton
Importance of pre-contractual statement, if statement is grounds of party contracting, it is a term, not representation (hops and sulphur)
Bannerman v White
Non-expert’s false representation not a term
Oscar Chess v Williams
Specialist’s false representation a term
Dick Bentley v Harold Smith Morots
If responsibility is assumed, it is an term (stop inspection of horse, give assuranes)
Schawel v Reade
If unclear whether responsibility has been assumed, it is a representation
Ecay v Godfrey
If statement is made with enough time for buyer to verify it, it is a time
Routledge v McKay
Term does not supply reduction of contract into writing
Inntrepeneur Pub v East Crown
Parole evidence rule: neither party can add to, vary or contradict terms in written agreement
Jacobs v Batavia
Exception to parole evidence rule: express oral assurance
Couchman v Hill
Exception to parole evidence rule: collateral contract (statement incorporated into a second contract)
City and Westminster Properties v Mudd
Damages can be claimed for breach of collateral contract
J Evans and Son v Andrea Merzanio
Incorporation by signature regardless of whether it is read
L’Estrange v Graucob
Signed document must have contractual effect, administrative document not enough
Grogen v Robin Meredith Plant Hire
Clause in signed document can be unincorporated if misrepresented by a party at signing
Curtis v Chemical Cleaning and Dyeing Co
Clause in signed document can be unincorporated if there is misunderstanding of its meaning through n fault of signee (glasses)
Saunders v Anglia BS
Incorporation by reasonable notice
Parker v South Eastern Railway Co
Notice must be give prior to incorporation of the contract
Thornton v Shoe Lane Parking
Terms must be contained or referred to in document intending to have contractual effect, ticket doesn’t count, but may be possible to infer through past business relationship
Chapelton v Barry UDC; British Crane Hire Co v Ipswich Plant Hire
Reasonable steps must be taken to bring notice to party’s attention; (purchase of timetable)
Parker v South Eastern Railway Co; Thompson v London, Midland and Scotland Railway Co
The more onerous the clause, the more must be done to give reasonable notice (red hand)
Spurling v Bradshaw; Interfoto Picture Library v Stiletto Visual Program
Incorporation through course of dealing: must be consistent (3 or 4 transactions per month); not enough for 3 or 4 per year
Henry Kendale and Sons v William Lillico and Sons; Hollier v Rambler Motors
Term can be implied by custom; must be certain, well-known, reasonable and intended to have legal consequences (12,000 is 10,000 in Suffolk)
Smith v Wilson
Terms implied by fact: business efficacy test
The Moorcock
Terms implied by fact: officious bystander test
Shirlaw v Southern Foundries
Lord Hoffman - fact must be reasonably understood and read in relevant background
Attorney-General of Belize v Belize Telecom
Business efficacy test for fact, but need to answer Lord Hoffman’s question
The Reborn
Business efficacy test and officious bystander test restated
Marks and Spencer v BNP Paribas (2016)
Terms implied by law:
Liverpool CC v Irwin
Terms implied by law: standard isn’t necessary, but what is reasonable and fair
Dyson LJ in Crossley v Faithful and Gould Holdings
Terms Implied by statute
Saele of Goods Act 1979; Supply of Goods and Services Act 1982; Consumer Rights Act 2015
Interpretation of terms: what is reasonable with all background knowledge of parties at time of contracting
Per Lord Hoffman in Investors Compensation Scheme v West Bromwich BS
Interpretation of terms: background information is that relevant to the contract. Objective and contextual.
Lord Hoffman, Bank of Credit & Commerce International v Ali
Interpretation: pre contractual terms excluded
Chartbrook v Persimmon Homes
Interpretation: Give words natural or ordinary meaning, or if multiple, one making most commercial sense
Rainy Sky SA v Kookmin Bank
Interpretation: help with words and syntax, but do not aid foolish party
Arnold v Britton
Objective and contextual approach to interpretation confirmed by Lord Hodge
Woods v Capita Insurance Services
Classification of terms: condition if at root of contract (remedy is damage or termination - repudiatory breach)
Lord Reid, Schuler v Wickman
Classification of terms: warranty if not at root of contract (Sale of Good ACT 1979, they are collateral to main purpose of contract)
Bettini v Gye
Classification of Innominate Term: if breach deprives innocent party of substantially the whole benefit of the contract, it is condition, if not, warranty. (Remedy dependent on seriousness of the breach)
Lord Diplock, Honk Kong Fir Shipping v Kawasaki
Examples of innominate term: 1. sufficiently serious, 2. not sufficiently serious, 3. time clause as a condition
- The Mihalis Angelos
- The Hansa Nord
- Bunge Corporation v Tradax
Construction of exemption clauses: Read narrowly
Wallis, Son and Wells v Pratt and Haynes
Exclusion clauses read more narrowly than limitation clauses
Alisa Craig Fishing v Malvern Fishing
Exclusion clause cannot exclude liability for providing used car, as contract stipulated new one
Andrew Bros v Singer
Exclusion clause for car’s condition not applied as item did not qualify as car owing to damage
Karsales v Wallis
Liability for fundamental breach can be excldued
Photo Productions v Securior Transport
Liability for negligence can be excluded:
- If clause expressly exempts a person for negligence,
- If clause does not expressly exempt a person, court must consider if words are wide enough to cover negligence
- If words are wide enough, can head of damage be based on some other ground than negligence (Hollier v Rambler Motors)
Lord Morton in Canada Steamship
Exclusion clauses in non-consumer contracts
Unfair Contract Terms Act 1977
Exclusion clauses in consumer contracts
Consumer Rights Act 2015
