incorporation Flashcards
where is incorporation used
in signed contracts, where the terms written cannot be changed or in unsigned contracts, where there is actual knowledge or reasonable notice
law of incorporation includes things like
tickets, electronic document, emails that refer to conditions, parties who sign without reading
what is there a growing trend in in relation to incorporation
There is a growing trend in contracts to include exclusion and limitation clauses that address potential breaches.
what are the functions of exclusion and limitation clauses
these clauses serve as promises that remedies for breaches will be excluded or limited.
what is an example of an exclusion and limitation clauses
A clause might state, “We are not liable to provide compensation if we carelessly damage your property.”
how do courts usually interpret exclusion and limitation clauses
Courts often take a hostile stance towards exclusion clauses, interpreting the language in ways that may not achieve the intended exclusions.
what is an example if the courts approach to exclusion and limitation clauses
Hollier v Rambler Motors
What happens if you know a party wants a specific term in an unsigned contract?
You assume the term is included if you proceed without specifically excluding it.
What is “reasonable notice” in the context of unsigned contracts?
A reasonable person is expected to be aware of the terms, and you are treated as having knowledge if reasonable notice was provided, especially Onerous or unusual terms require clear notice
what is a case relating toreasonable notice
- Olley v Marlborough
- interphoto
- Parker v south eastern railway
Incorporation can be by 2 things
a course of dealings or by trade custom
a course of dealings cases
- Mchuchin v mcbrain
-Hollier v rambler motors - AG v seven electrical
by trade custom incorporation explanation
It occurs when all parties are in the same trade and share a common understanding that certain terms are included in contracts.
Can trade customs modify or override contract terms?
Yes, similar to default implied terms, parties can modify or contract out of terms based on trade custom.
what are the exceptions of incorporation
-Fraud/misrepresentation;
- Non est factum
- Non-contractual documents.
