incorporation Flashcards
terms
statements within a contract setting out the rights and obligations of the parties, they are part of the contract and create legal obligations. they can be breached
representations
statements made at the time or before making a contract, not part of the contract and does not create legal obligations. this can’t be breached
misrepresentation
if a representation is false, it may allow the other party to rescind the contract
birch v paramount estates (importance on the statement)
birch was reliant on this statement therefore it became important enough to be a term (represented placed particular importance on the statement)
Rutledge v McKay
here the statement wasn’t why the motorcycle was bought
dick Bentley v harold smith (special knowledge)
statement was incorporated as its considered to be special knowledge so therefore it is more likely to be in the contract
Oscar chess v williams
here the seller was private so his knowledge isn’t classed as expert as he wasn’t from a dealership
timing
long period between the statement and the agreement it suggests that the statement wasn’t very important and should not be part of the contract.
short gap means the statement is very important and so should be part of the contract
signing a written contract
if the verbal pre contractual statements are not included then it means they were not important enough to be included in the contract- Routledge v McKay
if something is written in the contract and the contract is signed, this sis incorporated even if not read- l’estrange v graucob
exception to signing a written contract
interfoto v stiletto- unusual or onerous terms may not be incorporated without specific attention being drawn to them
second exception to signing a written contract
grogan v robin Meredith- the rule from l’estrange only applies to contractual documents. signing a non contractual document will not automatically incorporate those statements
third exception to signing a written contract
curtis v chemical cleaning - the exclusion could not be relied on due to the oral statements/assurances made by the cleaners about what the contract said.
oral statements more binding than the written statements
incorporation non contractual documents/ unsigned written information
chapelton v Barry- exclusion clause was not part of the contract as it was not clear enough
Parker v se railway- se had taken reasonable steps to inform him (so he should have known) and so this could be incorporated
o’brien v mgn
the newspaper had done enough to let readers know there were rules and that they could find these out
Thornton v shoe lane parking
the more onerous the exclusion, the clearer it must be
the contract was done before he saw the sign, therefore sign not incorporated
course of dealing
holler v rambler motors- not frequenting the place enough therefore it was unlikely H knew about the exclusion, and if the exclusion is vague it should be interpreted against the person making the exclusion
spurling v bradshaw- frequent enough establishes ‘regular course of dealing’ and it was very likely B knew of the exclusion
