Incorporation of Terms and Terms which Supplement the Contract -- link with misrep Flashcards
Tilden v Clendinning Rent-A-Car (Canada)
The incorporation by signature rule does not apply where it is clear to the contract procurer that the customer had not read the contract - reliance on a signature was only justified where it was reasonable
L’Estrange v Graucob
Incorporation of a term by signature
Grogan v Robin Meredith Plant Hire
This was not varied by the incorporation of a signature as the reasonable person would not have considered a time sheet to be a legally binding document
Curtis v Chemical Cleaning & Dyeing Co.
The Ds could only rely on the exemption clause which they had represented, i.e. damage to the beads not everything - this analysis resembles an estoppel
Olley v Marlborough Court Hotel
Notice must be given before or at the time of the contract - here the exclusions on the door of the hotel room came too late
Thornton v Shoe Lane Parking
The issue with this is obviously offer and acceptance, but, even if it had been incorporated this way, the notice itself was too vague and the Ds had not done enough to bring to the C’s attention the disclaimer of responsibility
Chapelton v Barry Urban District Council
The document must be reasonably expected to contain contractual terms, this was not seen to be the case with a ticket - it was a mere receipt that he had paid - the ticket also came after the conclusion of the contract; the sitting down was the acceptance
British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd
Due to the nature of the need for urgency, the plaintiffs were allowed to go off conditions specified after the provision of a crane and the indemnity they requested even though it came after the contract - both parties knew it was subject to normal conditions
Parker v Souther Eastern Railway Co
Had the company done what was necessary top give reasonable notice by saying ‘See back’ on the ticket - it is about serving the general public, but not someone who is careless or ignorant - the P is free to leave the conditions unread but he must know that there was writing on the ticket relating to the transaction
Thompson v London, Midland and Scottish Railway Co. Ltd
The mischief in this is that the Ds were free to insert a term which allowed them to cause injury to their customers with impunity - now provided for under UCTA - the term was, however, incororated
Interfoto Picture Library v Stiletto Visual Productions
AEG (UK) Ltd v Logic Resource (as above)
Enough had not been done to bring such a term to the P’s attention but, at all events, it was so onerous that it was probably a disguised penalty, which is unenforceable - the clause had also not been differentiated from other clauses (Dillon LJ)
Spurling v Bradshaw
The more onerous the term the more notice must be given
McCutcheon v David MacBrayne Ltd
Incorporation by course of dealing - there was no consistency with dealings of the past to validly incorporate the clause, one has to look at the context - NB** Lord Reid said that this was for implying terms not incorporating
Helibut, Symons & Co v Buckleton
No misrep - the intentions of the parties govern by looking at the totality of the evidence
Also RE collateral contract, that contract must also be entire
Bannerman v White
The P’s indemnity was a part of the contract since the negotiations would not have proceeded further unless it had been given
Oscar Chess Ltd v Williams
The D’s statement was a representation rather than a warranty and the P knew that the D had no greater knowledge than he had of the car - NB dissent however, Morris LJ said that the age was an essential element and he held it as a condition of the contract
Dick Bentley Productions Ltd v Harold Smith Motors
Distinguished Oscar Chess - the statement to mileage was a term of the contract - if a representation is made during the course of deals for the very purpose to induce the other party to act on it, and actually inducing him, then that is prima facie grounds for inferring a warranty - this can be rebutted if it was an innocent misrep - was rebutted in OC
Schawel v Reade
Where a seller assumes responsibility for information e.g. the soundness of a horse, then it will definitely create a term of the contract
Ecay v Godfrey
If a seller is unprepared to take responsibility for a certain aspect of the deal then it will not be a term of the contract
Inntrepreneur Pub Co v East Crown Ltd
- A statement made at or just before the conclusion of contract is more likely to be a term
- Where the parties have drawn up a written contract, and made no reference in it to an earlier statement, there is a presumption that it is not to have contractual effect
J Evans & Son v Andrea Merzario
Even despite the parole evidence rule the courts will look to the intentions of the party to decide whether the parties wanted it to be part written/part oral
Couchman v Hill
The Parole Evidence Rule - the express oral assurance amounted to a contractual term - this is controversial, the C was buying at an auction, should he benefit from a private assurance which the other bidders did not have? NB timing - the assurance came after the catalogue statement
City and Westminster Properties v Mudd
Collateral contracts (similar to unilateral contracts) - a promise not to enforce a covenant against a tenant could not be estopped due to the formation of a new contract but there was a collateral contract found which enforced the promise - essentially two contracts, 1. lease, 2. promise
Esso Petroleum v Mardon
Lord Denning concerning the rise of the collateral contract following Helibut and before the Misrepresentation Act
Record v Bell
A collateral contract can sidestep the parol evidence rule and s2 of the LPA - it must be a complete contract – used to be very useful for non-fraudulent misrep but this is now actionable
Inntrepreneur (collateral)
Where there has been an ‘entire agreement’ clause there can be no collateral contract
Liddlesdale
Omak Maritime
A contract can be breached even if performance is similar
Recent case - if damages would put C in a better position than before he cannot claim
