Incorporation of Express Terms Flashcards
Incorporation of express terms –> what are the 3 ways?
Signature
Notice
Course of Dealings
Signature - L’Estrange v Graucob [1934] 2 QB 394\
The terms of a contractual document signed by a person, in the absence of fraud or misrepresentation, are binding even if unread.
Signature - * Curtis v Chemical Cleaning & Dyeing Co [1951] 1 KB 805
The contract for dry cleaning contained the following exclusion clause: “..article accepted on condition that the company is not liable for any damage howsoever arising.”
Shop attendant told the claimant that they wouldn’t be liable for damage to certain features of the dress when in actual fact the document claimed they wouldnt be liable for any damage at all to the dress
Despite signing a piece of paper containing these terms, the Claimant wasn’t bound by them due to the misleading explanation of the term given to her by the shop attendant
Notice
A heads up / warning of something
If notice is being given in a document, is that document sufficiently contractual in nature (i.e. a document upon which one might expect to find terms)?
Notice - Chapelton v Barry UDC [1940] 1 KB 532
Chapelton wanted to hire a deck chair and had to get a ticket for it –> so he takes his deck chairs and then later it collapses under him so he seeks to sue Barry UDC
However they say he was given a ticket which had an exclusion cause for any liability of damage caused by the deck chair
Court said the ticket was just receipt for the deck chairs and didn’t see it as a contractual in its nature
Notice - Olley v Marlborough Court Hotel [1949] 1 KB 532
The timing of giving notice of the terms can determine whether they are incorporated
Olley and Hotel had made an agreement when checking into the hotel –> On the door to their room, there was a notice which excluded the hotels liability for any loss or theft of items –> However Olley items ended up being stolen so he sued
Courts came to the decision that the notice was held not to be effective because it had not been incorporated into the contract.
The contract had been formed when the Claimant checked in and paid for a week’s stay – it was too late to try to include the notice in the room after the contract had already been formed.
Notice - Thorton v Shoe Lane Parking Ltd
Lord Denning observed that he had seen some terms that were so onerous that they would need a large red hand pointing to them in the contract document before he would consider that sufficient notice had been given to incorporate them
Course of Dealings (parties who have a previously traded on similar terms)
Paries who have previously traded on similar terms –> has to be sufficiently consisten
Spurling v Bradshaw - The clause may be incorporated because of a previous course of dealings
Course of Dealings - Hollier v Rambler Motors
H had placed his car with Rambler Motors on 3 or 4 occasions over the course of 5 years.
In those circumstances, it was held that terms were not incorporated by course of dealings as those dealings were not regular enough.
Course of Dealings - Hardwick Game Farm v SAPPA
Here, the parties had dealt with each other 3 to 4 times per month over a period of 3 years, usually on written terms which never changed.
On the last occasion, the contract was made orally, but the Court nevertheless found that the parties were trading on the same terms upon which they usually traded (the terms were incorporated through their course of dealings).
