incorporation Flashcards
What are terms?
Details of what has been agreed between the two parties. Some contracts will be in writing (particularly commercial/ business contracts where it is important to know exactly what has been agreed) but others are purely verbal with no written terms (many consumer contracts). The problem with verbal contracts is there is little evidence of agreed terms.
What is a pre-contractual statement?
Any verbal/ written statements made before the official contract is made. It is important to decide if such statements have been incorporated into the contract as terms. If they have, there may be a claim for breach of contract if the term is not lived up to. If a statement has not been incorporated as a term, it is simply a representation.
What factors will the court consider to determine if pre-contractual statements have been incorporated?
-Did the representee place particular importance on the statement?
-Did the representor have special knowledge (expert opinions)?
-Timing
-Signing a written document/ contract
-Non-contractual documents/ unsigned written information
-Regular course of dealings
Which case is an example of the representee placing particular importance on the statement?
Birch v Paramount Estates. Birch clearly considered the statement important as he agreed to buy the house then and there without seeing the other house first. The statement was one of the main reasons he agreed.
Which case is an example of the representee not placing particular importance on the statement?
Routledge v McKay. The buyer had to think about the purchase for a week and didn’t care enough to put the date in the contract, the date was not so important that it compelled him to buy it.
Which case is an example of the representor having special knowledge?
Dick Bentley v Harold Smith- the seller was a car dealer so should know details about the car. It is reasonable to rely on an expert’s opinion.
Which case is an example of the representor not having special knowledge?
Oscar Chess v Williams- seller was a private seller so wouldn’t necessarily know the exact model of the car. It is not reasonable to rely on a non-expert’s opinion.
Which case is an example where timing meant the statement was incorporated?
In Birch v Paramount Estates, C decided to buy the house soon after the statement was made, showing how important it was to him.
Which case is an example where timing meant the statement was not incorporated?
In Routledge v McKay, the buyer had to think about the purchase for a week and did not care to put the date in the contract; the date was not so important that it compelled him to buy it.
What does the law assume if verbal statements are not included in a written contract?
It was not the intention of the parties for the statement to be a term of the contract- Routledge v McKay.
What is the rule about when something is written into the contract and it is signed?
L’Estrange v Graucob- if something is written into the contract and signed, this is incorporated even if it is not read or understood.
What is the exception to the rule on signed written contracts relating to unusual or onerous terms?
Interfoto v Stiletto- unusual or onerous terms may not be incorporated without specific attention being drawn to them
What is the exception to the rule on signed written contracts relating to additional non-contractual documents?
Grogan v Robin Meredith- the rule from L’Estrange only applies to contractual documents. Signing a non-contractual document will not automatically incorporate those pre-contractual statements.
What is the exception to the rule on signed written contracts relating to oral statements?
Curtis v Chemical Cleaning and Dyeing- if an oral statement is made about something in the signed contract, the oral statement is more binding than the written statement.
When can non-contractual/ unsigned written information like tickets or notices be incorporated?
Any information outside of signed documents is tested on how clear that information would be when making the contract.