Incorporation

Question 1

What is a pre-contractual statement called if it has and hasn’t been incorporated into the contract?

Answer 1

Has - terms

Hasn’t - representations

Question 2

Define what a term is

Answer 2

Details of what has been agreed between two parties

Question 3

What are the 6 factors when deciding whether or not something has been incorporated into the contract?

Answer 3

• special importance
• special knowledge
• timing
• writing
• notices/tickets
• course of dealings

Question 4

Why was the statement incorporated in Birch v PE?

Answer 4

The representee clearly considered the statement important as he agreed to buy the house based mainly from the statement made without viewing it first

Question 5

Why was the statement incorporated in Dick Bentley v Harold Smith?

Answer 5

The representor had special knowledge (due to being a car dealer) and so it is more likely that his opinion would be relied on and so may be a term of the contract

Question 6

In which case was there only a representation due to the representor not having any special knowledge?

Answer 6

Oscar Chess v Williams

Question 7

How did timing play a role in the outcome of Birch v PE?

Answer 7

As C decided to buy the house soon after the statement was made, it was clear that it was important to him

Question 8

How did timing influence the decision in Routledge v Mckay?

Answer 8

The buyer had to think about the purchase for a week and there was no further mention of the statement in this period of time

Question 9

What is the general rule if a pre-contractual statement is not put into writing and what is the case for this?

Answer 9

The law will usually infer it was not the intention of the parties for that statement to be a term - Routledge v Mckay

Question 10

What is the general rule if a pre-contractual statement is put into writing and what is the case for this?

Answer 10

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

Question 11

What is the exception coming from the case of Interfoto v Stiletto?

Answer 11

Unusual or onerous terms (eg. excluding liability for all damage) may not be incorporated without drawing special attention to them first

Question 12

What is the exception under Curtis v CCD?

Answer 12

Even if a term is written into a contract, this can be varied by subsequent verbal statements

Question 13

What rule was created about exclusions in the case of Thornton v Shoe Lane Parking?

Answer 13

The more onerous the exclusion, the clearer it must be

Question 14

Why was the exclusion notice incorporated in O’Brien v MGN?

Answer 14

The newspaper had taken reasonable steps to let readers know there were rules and where they could find these out

Question 15

Why was the ticket incorporated in Parker v SE?

Answer 15

SE had taken reasonable steps to inform C of the exclusion

Question 16

In which case was the exclusion on the ticket not incorporated and why?

Answer 16

Chapelton v BUDC - The notice didn’t mention the exclusion and the front of the ticket didn’t mention there was anything on the back

Question 17

Why was the statement not incorporated in Hollier v Rambler Motors?

Answer 17

3 or 4 times over the course of 5 years is not enough to establish a regular course of dealings and so it is unlikely that H knew of the exclusion

Question 18

What did Hollier v Rambler Motors decide about vague exclusions?

Answer 18

It should be interpreted against the person making the exclusion

Question 19

Why was the statement incorporated in Spurling v Bradshaw?

Answer 19

They had frequent enough contracts to establish a regular course of dealings and so it is likely they were aware of th exclusion