Incorporation Of Terms Flashcards
Two divisional groupings of incorporated terms
Written: incorporation of provisions tending to diminish one party’s responsibilities under the contract.
Oral: provisions which would add to one party’s contractual undertakings.
Incorporation
Whether a stipulation before or at the time of contracting has become a formal term of the contract or not.
L’Estrange v Grauoch (1934)
Incorporation by signature:
- P signed a sales agreement without reading it.
- Document included a general exclusion of all express or implied terms relating to cigarette machine.
- Didn’t work, P claimed damages for breach of terms that it would be fit for purpose.
- Held that P’s signature was conclusive of her agreement to all the terms of the document, as signature proves assent.
Tilden Rent-a-car Co v Clendinning (1978) -Ontario Court of Appeal
CAO- held that the signature rule did not apply where it was or should have been clear that the customer had not read the contract and therefore not aware of the burdens it imposed.
-Reliance on signature only justified where it was reasonable.
Grogan v Robin Meredith Plant Hire (1996)
CA held that a timesheet would not be regarded by a reasonable person as a document likely to contain contractual terms.
- it was merely an administrative device.
*Tilden approach
Curtis v Chemical Cleaning and Dyeing Co (1951)
- P took a dress to dry cleaners.
- Signed a receipt after being told it made the company exempt for liability for damage to the dress trimmings.
- Dress was returned stained.
- D denied liability on the basis of the clause.
- DENNING LJ IN CA HELD THAT D WERE NOT ENTITLED TO RELY ON THE CLAUSE, IT OPERATED ONLY TO THE EXTENT WHICH THEY HAD REPRESENTED.
Incorporation by notice
Stipulation not contained in document signed by party who is to take the burden of it, but nonetheless may be validly incorporated in the contract.
REASONABLENESS OF NOTICE IS THAT IT MUST BE GIVEN BEFORE OR AT THE TIME THE CONTRACT IS FORMED.
Olley v Marlborough Court Ltd (1949)
Court of Appeal held that the hotel were liable for negligence as the notice on the hotel door that excluded the hotel from liability for loss or theft of valuables, as the NOTICE WAS NOT INCORPORATED INTO THE CONTRACT SIGNED UPON ARRIVAL AS IT WAS NOT VISIBLE.
Olley v Marlborough Court Ltd (1949)
Denning LJ 3 ways in which is was one party could demonstrate the other’s assent to being bound by a stipulation.
1) Written document signed by the party to be bound.
2) Handing them before or at time of the contract a written notice specifying terms and making it clear to him that the contract is on one terms.
3) Prominent public notice which is plain for all to see when he makes the contract or an express oral stipulation.
- nothing short of these will suffice.
Thornton v Shoe Lane Parking (1971)
- Plaintiff returned to car park to pay parking charge and collect his car.
- Accident occurred in which P was severely injured, partly as a result of D’s negligence.
- Court of Appeal held that D was liable as they had not done what was necessary to bring the exempting stipulation to the plaintiffs attention at the time the contract was made.
Grogan v Robert Meredith Plant Hire
For the stipulation to be validly incorporated it must be contained in a document which could reasonably be expected to contain contractual terms.
Chapleton v Barry Urban District Council (1940)
-Plaintiff sat on rented deck chair which gave way and caused him injury.
-Council sought to defend itself by reference to exclusionary words printed on the ticket available from attendant.
-CA HELD THAT THE WORDS ON TICKET WERE NOT INCORPORATED AS TICKET NOT A CONTRACTUAL DOCUMENT.
(Ticket with the exclusionary words came after the contract was formed)
British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd (1975)
D’s urgently required a crane, hire and transport costs agreed by telephone.
- Crane sank and was recovered at substantial cost to plaintiff.
- Ipswich contended that the relevant clauses were not incorporated into the contract which had been made earlier by telephone.
- CA HELD THAT THE CLAUSE WASH VALIDLY INCORPORATED FOR 3 REASONS:
1) They were in same line of business, so
2) Knew what terms business was usually conducted
3) Urgency with which the defendants required the crane had displaced the usual formalities.
Unreasonable notice of an unsigned stipulation.
PARKER V THE SOUTH EASTERN RAILWAY COMPANY (1877)
Mellish J:
- if the person receiving the ticket did not see or know that there was any writing on the ticket- NOT BOUND BY CONDITIONS.
- if the person receiving the ticket knew that there was writing and knew/believed that the writing contained conditions -BOUND BY CONDITIONS
- if they knew there was writing but did not know or believe that it contained conditions then -BOUND BY CONDITIONS
Thompson v London, Midland and Scottish a Railway Company (1930)
- P was injured by a train run by the defendants.
- D denied liability by reference to a clause which exempted them from responsibility for injury to excursion ticket holders how’s lever created.
- P could not read, excursion had been booked through her niece.
- Despite the jury finding that the company had not taken reasonable steps to bring the existence of the clause to the plaintiff, JUDGE FOUND FOR THE PLAINTIFF.
- Court of Appeal upheld the Judge’s decision that the jury had no evidence on which they could have made their finding.
- Company had offered the excursion at a reduced price and on ascertainable terms, the plaintiff had accepted and was bound by the terms.
