Misrepresentation Flashcards
Contractual nature-signature
This contract must be of this.
Brogan v robin Meredith plant hire ltd- document was a time sheet so clause wasn’t incorporated.
INCORPORATION- Signature
Bound even if you didn’t read the terms.
L’estrnage v graucob - bought cigarette machine for cafe didn’t read term. “Express or implied, condition, statement or warranty is hereby excluded” machine failed to work properly. C protected by Clause
Clarification
It must be represented appropriately
Curtiss v chemical cleaning and dying co- cleaner said they they had “no liability for loss or damage to beads or sequins” dress stained so not protected by clause **
Notice
Reasonably sufficient not actual notice is required
Parker v South Eastern railways co ltd- d left bag (£24)at station ticket said see back stating that it excluded liability for loss of items exceeding £10. C took reasonable steps to draw attention.
Before or at time of agreement
Olley v malborough council - d stayed at hotel, mink coat stolen from the room. Clause on the back of the door “will not hold themselves responsible for articles loss or stolen” hotel can’t rely as was Seen after the contract was made.
Must be a contractual document-notice
Not something that acknowledges payment.
Chapelton v Barry - terms were on the back of reciept
Previous dealing
Courts will assume parties will be aware of the terms if consistently
Spurling v Bradshaw - d delivered 8 barrels of orange to warehouse men, clause exclude liability for loss or damage “occasioned by negligence, wrongful act or default”. Collection barrels empty or dirty so refused to pay storage charges but clause was incorporated.
INTERPRETATION- Contra proferentem rule
If unclear ambiguous, courts apply the clause against the person relying on it.
Houghton v trafalgar insurance co- c motor insurance provided that the de insurers not liable if c carried “excess load” c had 6 people in car whilst in accident. Interpreted to mean “too much weight” so dos liable on policy.
Three stage test
Used for clauses excluding negligence.
Canada steamship lines ltd v R
-does it refer to negligence?
-Is the wording wide enough to cover negligence?
Is d responsible for something other than negligence?
( if exclusion fails, limitation might succeed)
What is seen more favourably ?
Limited liability
STATUTORY CONTROLS- unfair contract terms act 1977
Business’ can rely on this as long as they are acting as a consumer
Basic purpose is to restrict the extent to which liability can be excluded.
S12 UCTA 1977
Seems as a consumer if they didn’t make the contract in the course of business or for profit
S12 (3) UCTA 1977
Evidential burden on the party claiming that the other person isn’t dealing as a consumer
Stevenson v Rodgers
D sold fishing boat which wasn’t satisfactory of quality. Argued didn’t sell in the course of business as he catches and sells fish not buying a and selling boats.
Held was in the course of business ***
S11 UCTA 1977
The reasonable test- if the parties knew of the term or observed it in the contract then The clause will be seen as reasonable.
