incorporation cases Flashcards
Hollier v Rambler Motors issue
fire
Rambler Motors has exclusion clause that said they will not be responsible for damage caused by fire to customers cars on premises. Due to the carelessness of the garage a customers car was caught on fire.
Does the EC protect them from liability?
no, exclusion clause doesn’t protect from liablity, example of the courts hostile approach to exclusion and limitation clauses, said that any reasonable person would not read this as to cover instances where the fire was directly caused by the company.
Olley v Marlborough facts
Women contracted to stay in Motel at reception. EC behind Motel room door excluded liability for any stolen or lost goods. Women had things stolen from her room.
Is the Motel able to incorporate the EC into the contract?
Because the EC was inside the room it would never been seen by customers until after they had formed contract at reception.
Incorporation cannot come after formation!!!
Parker v south eastern railway facts
Cloak room at train station gives you a ticket in exchange for looking after your jacket.
The ticket has conditions on the back which excludes the train station from liability if things are stolen.
Can this EC be incorporated?
no the exclusion clause cannot be incorporated as Parker did not have sufficient notice thus cannot be bound by the terms he did not know about (unsigned documents rule).
Interphoto facts
Stiletto hired 47 photographic transparencies. The unsigned delivery note stated that they had to be returned within 14 days, with a holding fee charged for each day late. The holding fee was significantly higher than market rates. Stiletto did not read the conditions, returned the transparencies four weeks late, and was invoiced a fee of £3,783.50.
Was reasonable notice given?
reasonable notice wasn’t given as nothing was done to bring it to the attention of customer and therefore the term is not part of the contract.
Hardwick game farms facts
DEALINGS
Parties have long history of dealing with each other through oral orders which are followed by contract notes - the contract notes are not technically part of the contract because they came after the contract was formed.
Can the terms of the contract note be incorporated into the contract?
yes the terms of the contract note can be incorporated into the contract through course of dealing as parties with history think of transaction in light of background information of their previous dealings.
Mchuchin v mcbrain FACTS
DELAINGS
The case involved a ferry service that provided tickets for vehicles. Printed conditions included limitations of liability, stating that if the ferry sank, they would not be liable for any vehicles on board. The plaintiff argued for incorporation of these terms through a course of dealings, as they had used the ferry multiple times.
The court ruled that there was no incorporation by course of dealings, as the ferry had not consistently provided the terms in question during prior trips. Thus, the limitations of liability were not enforceable.
dealings incorpertaion
- Court found that there was no incorperation by course of delaing as there was not enough of a pattern as only 3 or 4 dealings over the course of 5 year
AG v seven electrical FACTS
DEALINGS
Seven Electrical contracted with the Crown to install an uninterruptible power supply for the National Library. A fire occurred three days later, causing $1.9 million in damages. The Crown sued Seven for breach of contract, despite prior dealings, as Seven had not sent updates to their terms.
Was reasonable notice given?
YES reasonable notice was given because of the numerous previous dealings where terms could have been brought to notice, the clear direction to terms on the reverse side and clearly set on the reverse side.
L’Estrange v Graucob facts
Contracted to purchase cigarette vending machine which turned out to be faulty. Clause in contract excluded all terms not in the contract meaning cannot be contracted out of contract.
Are you bound by a contract that you do not read?
When a document containing contractual terms is signed, then, in the absence of fraud or misrepresentation, the party signing is bound, and it is wholly immaterial whether he has read the document or not.
Curtis v chemical clenaing company facts
EXECPETION
Customer drops wedding dress to dry cleaning company and is asked to sign some sort of waiver. The shop assistant says not to worry it just contains some exclusion clauses to fancy bead work, but turns out it had far broader exclusions of liability.
Is the customer bound by signed document?
no not bound as Exception to L’Estrange rule because there was a misrepresentation about the contents of the signed documents.
If there is an actionable misrepresentation as to the terms, the contract will not bind even if it is signed.
Nela V biddle held
EXCPETION - Non-contractual documents.
Situation where someone asks you to sign to confirm delivery
If document happens to have a bunch of terms on the other side then you become bound by these
Toll v alpha farm facts
Distribution of flu vaccine involved a credit application that stated that its services are subject to the conditions on the other side of the consignment note (exclusion clause). The conditions were not read prior to signing.
Can distributor rely on the exclusion clause?
yes can reply on exclusion clause as Sufficient notice of the terms and conditions was provided because there was a clear direction to them right above the signature line.
Nalder & Briddle v C & F Fishing facts
NBL contracted to repair a CFL vessel, with the tender limiting liability to $75,000. Despite many oral negotiations, the parties never signed a formal contract. The agreement was only verbal, but the defendant signed several job cards approving the work.
is NBL protected by the limitation clause?
no they are not protected by the limitation clause as although Oral contracts can incorporate written documents, but strong evidence of the terms is essential. Since there was no mention of the exclusion clause after the oral agreement, it cannot be enforced. The nature of the clause affects the notice required for it to be binding. Even though the documents were signed, they are exceptions to the rule established in L’Estrange, meaning the signature does not bind if the document does not clearly form part of the contract or reasonably contain contractual terms.
