Lecture 8-Incorporation Flashcards
Contracting in
Sometimes terms are ‘contracted in’ – where an agreement makes reference to an often long list of terms that are not actually included in the contract.
Courts focus on the incorporator’s conduct rather than the person receiving the terms.
Methods of Incorporation
1.Signature
2.Reasonable or sufficient notice
3.Previous course of dealing
Signature
L’Estrange v Graucob [1934]
If the term was directly inserted into the parties’ contract, English law does not require the party responsible for inserting it to take any steps to draw it to the other party’s attention.
When a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not
Signature Invalidated
Curtis v Chemical Cleaning and Dyeing Co. [1951] 1 KB 805- Invalid because of Misrep even though the document was signed
Notice
Applies where there is no written contract or it is not signed
Incorporation
Parker v South Eastern Rly (1877)
The defendant company had not taken reasonable steps to bring the clause to the notice of Mr Parker.
Even if a term isn’t specifically written into a contract, it may still be incorporated if sufficient (or reasonable) notice of the term has been provided.
This is an objective test.
Harshness
Thompson v LMS Railways [1930]
The claimant was illiterate but the clause on the back of the ticket (which ‘contracted in’ clauses from the company timetable) successfully incorporated the terms set out on the timetable. Reasonable steps were taken.
Factors in determining sufficient notice
1.The nature of the clause
2.Timing
3.The nature of the document
Nature of the Clause
SO, if the clause is potentially very harsh on the party not in breach, then what constitutes the reasonable steps required to secure incorporation will have to reach a much higher threshold. Very harsh= higher threshold (greater responsibility)
Nature of Clause Case Authority
Spurling v Bradshaw [1956] “Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient”
Timing
Olley v Marlborough Court Ltd [1949]
The notice on the back of the hotel room door was not incorporated – the contract had already been agreed before it was brought to their attention.
Was the clause incorporated before the contract was concluded? If not, then it is not valid
Parking
Thornton v Shoe Lane Parking [1971]
The exclusion clause printed on a ticket dispensed by the machine in an automatic barrier controlled car park was not incorporated because the contract was concluded when the motorist drove up to the barrier and activated the machine.
Nature of the Document
The nature of the document constituting notice may also be important i.e. is the document of a type that typically contains contractual terms?
Case Authorities
Thompson v LMS Railway [1930]
A train ticket is a contractual document.
Chapleton v Barry UDC [1940]
The ticket issued on the hire of a deckchair was not a contractual document – no reasonable man would regard it otherwise. Regarded as a receipt.
Timesheet
Grogan v Robin Meredith Plant Hire [1996]
Timesheet is not a contractual document
