Week 7: Incorporation of Unnegotiated Terms Flashcards
What are the three devices for including unnegotiated terms?
- Signature
- Reference to notice
- Previous course of dealing
Which case highlights that a signature is a valid indication of assent to terms of a contract.
Sundolitt v Addison
Which case highlights that even when an agreement is formally signed, parties attention must be drawn to unusual or special conditions.
Montgomery Litho Ltd v Maxwell.
Which case highlights that a voucher can not be considered a contract.
Taylor v Glasgow Cooperation
- Ms Taylor fell and injured herself while at the bathhouse
- GC directed her to the term on the voucher which precluded the cooperation from liability for any injuries sustained in the bathhouse.
- Court ruled that a reasonable person would not inspect a voucher for contractual terms.
Which case highlighted that terms cannot reference a notice, only visable subsequent to the bargain being concluded.
Thornton v Shoelane Parking
- Notices were placed around the carpark, however only visible once the ticket had been payed for therefore there was no opportunity to withdraw from the agreement.
What is the Rule given my Lord Denning in Spurling v Bradshaw regarding important contractual terms.
Red hand rule.
Which case highlights that regardless of whether a party has read the terms, if they are given sufficient notice, they are bound.
Parker v Southeastern Railway.
Which case highlights that if there has been a series of agreements between parties and another agreement is made without expressly referring to those conditions then they are therefore implied.
McCutcheon v MacBrayne.
What are the four approaches to the interpretation of a contract?
- Literal - what does the contract say and what are the ordinary meanings of the words concerned?
- Factual Matrix - Based on three key elements
- The iterative approach - Mix of both literal and factual matrix approaches
- Contra Proferentum - Usually applied to contract with standard terms, where the court will interpret against the party seeking to rely on the clause.
What are the three key elements of the factual matrix approach to the interpretation of a contract?
- The whole commercial context.
- Commercial sensibility - commercial awareness of the relevant market (e.g. R&J Dempster v Motherwell Bridge and Engineering Co.)
- Prior cummings - what was known to both parties before contract was concluded
Which case highlights The Iterritive approach to contracting?
Arnold v Britton
What case highlights contra profenendum ?
Life Association of Scotland v Foster
Which case highlights unjustified enrichment?
Cantiere San Rocco SA v Clyde Shipping & Engineering Co. Ltd
Chapelton v Barry district council
- Offer: Stack of chairs available for use
- Acceptance: Taking a chair
- Sign is the issue. There is no reference to the exclusion clause in the sign
- Insufficient to merely put it on the rear of the ticket
Olley v Marlborough Ltd [1949] 1 KB 532
Notice in bedroom: ‘The proprietors will not hold themselves responsible for articles lost or stolen, unless handed to the manageress for safe custody. Valuables should be deposited for safe custody in a sealed package and a receipt obtained’
- Items were stolen
- They were not given fair notice of the terms and conditions considering the terms and conditions were in the bedroom – after the bargain had been concluded
- Even if there is a notice – is there fair notice and is it sufficient?
- Court ruled in favour of the plaintiff
Judgement:
“The best way of proving it is by a written document signed by the party to be bound. Another way is by handing him before or at the time of the contract a written notice specifying its terms and making it clear to him that the contract is on those terms. A prominent public notice which is plain for him to see when he makes the contract or an express oral stipulation would, no doubt, have the same effect. But nothing short of one of these three ways will suffice.” per Lord Denning.
