Incorporation Of Terms

Question 1

What is incorporation of terms

Answer 1

When considering terms of a contract it is necessary to consider whether the terms have been incorporated into the contract
There are a number of common law rules to consider whether the term has been incorporated or not

Question 2

What are the 5 common law rules (with cases)

Answer 2

1) written agreements (L’Estrange v Graucob
2) reason notice (Thompson v LMSR)
3) harsh terms (Interfoto)
4) prior dealings (Brit Crane Hire)
5) tickets (Parker v SER)

Question 3

What is written agreements (with cases)

Answer 3

If the agreement is signed the terms contained are binding on the parties even if they didn’t read them (L’Estrange v Graucob)
This only applies to terms specific to the matter not general terms (Curtis v Chemical Cleaning and Dyeing)

Question 4

What is reason notice (with cases)

Answer 4

The courts will consider was the term made available, was it included in a reasonable place and is the term fair
If no notice is given the term is invalid (Chapleton v Barry)
If the term has been presented it is likely valid (Thompson v LMSR)

Question 5

What is harsh terms (with cases)

Answer 5

If the term is held to be unfair or onerous to the party held to it then it must be explicitly brought to their attention (by large font) (Interfoto)
If it is overly onerous the court will likely deem the term to be invalid especially if it has been hidden from the other party (Blu-Sky)

Question 6

What is prior dealings (with cases)

Answer 6

If parties are both aware of the terms used in prior dealings then they can be incorporated (Brit Crane Hire)
However the approach must be regular and consistent with the prior dealings (Kendall v Williams)
If it is an arrangement frequently used then the terms will be valid (Spurling)
If there is no prior agreements there will be no incorporation (mcCutcheon v David)

Question 7

What is tickets (with case)

Answer 7

If terms are presented separately to the contract they will only be included if notice is given
The courts will consider was attention brought to the term, was the term included in a reasonable place and document and are the terms unusual or onerous (Parker v SER)