Incorporation Flashcards

You may prefer our related Brainscape-certified flashcards:
1
Q

What is a pre-contractual statement?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What are terms?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What factors will the court consider to determine if pre-contractual statements have been incorporated?

A

-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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Which case is an example of the representee placing particular importance on the statement?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Which case is an example of the representee not placing particular importance on the statement?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Which case is an example of the representor having special knowledge?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Which case is an example of the representor not having special knowledge?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Which case is an example where timing meant the statement was incorporated?

A

In Birch v Paramount Estates, C decided to buy the house soon after the statement was made, showing how important it was to him.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Which case is an example where timing meant the statement was not incorporated?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What does the law assume if verbal statements are not included in a written contract?

A

It was not the intention of the parties for the statement to be a term of the contract- Routledge v McKay.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is the rule about when something is written into the contract and it is signed?

A

L’Estrange v Graucob- if something is written into the contract and signed, this is incorporated even if it is not read or understood.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is the exception to the rule on signed written contracts relating to unusual or onerous terms?

A

Interfoto v Stiletto- unusual or onerous terms may not be incorporated without specific attention being drawn to them.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What is the exception to the rule on signed written contracts relating to additional non-contractual documents?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is the exception to the rule on signed written contracts relating to oral statements?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

When can non-contractual/ unsigned written information like tickets or notices be incorporated?

A

Any information outside of signed documents is tested on how clear that information would be when making the contract.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Which case is an example of unsigned written information not being incorporated?

A

Chapelton v Barry UDC- the notice didn’t mention the exclusion clause, nor did the front of the ticket suggest there was anything on the back so the exclusion clause was not part of the contract as it wasn’t clear enough.

17
Q

Which case is an example of unsigned written information being incorporated?

A

Parker v SE Railway- SE has taken reasonable steps to inform Parker of the exclusion both on the notice and the ticket so he should have known about it. Therefore the exclusion could be incorporated.

18
Q

Which case is another example of non-contractual documents being incorporated (the one about the newspaper)?

A

O’Brien v MGN- the newspaper had done enough and taken reasonable steps to let readers know there were rules and that they could find these out (either by seeing older newspapers or going to their offices).

19
Q

Which case is an example of unsigned written information not being incorporated due to the location of it?

A

Thornton v Shoe Lane Parking- Lord Denning said the more onerous the exclusion, the clearer it must be. As the sign tried to exclude liability for personal injury this meant it must be very clear. The terms were only displayed on a pillar inside the car park and could only be seen after the contract had been made therefore, it couldn’t be incorporated as terms of the contract.

20
Q

In which case was it decided that the dealings were not frequent enough to incorporate the exclusion clause?

A

Hollier v Rambler Motors- 3/4 times in 5 years is not frequent enough to establish a ‘course of dealings’. Therefore, it was unlikely Hollier knew about the exclusion. Additionally, if the exclusion is vague, it should be interpreted against the person making the exclusion.

21
Q

In which case were the dealings frequent enough to establish a regular course of dealings?

A

Spurling v Bradshaw- the parties had frequent enough contracts to establish a regular course of dealings and it was very likely Bradshaw knew of the exclusion. Exclusions are more likely to be incorporated commercial cases because of the equality of bargaining power.