Week 7: Incorporation of Unnegotiated Terms

Question 1

What are the three devices for including unnegotiated terms?

Answer 1

1. Signature
2. Reference to notice
3. Previous course of dealing

Question 2

Which case highlights that a signature is a valid indication of assent to terms of a contract.

Answer 2

Sundolitt v Addison

Question 3

Which case highlights that even when an agreement is formally signed, parties attention must be drawn to unusual or special conditions.

Answer 3

Montgomery Litho Ltd v Maxwell.

Question 4

Which case highlights that a voucher can not be considered a contract.

Answer 4

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.

Question 5

Which case highlighted that terms cannot reference a notice, only visable subsequent to the bargain being concluded.

Answer 5

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.

Question 6

What is the Rule given my Lord Denning in Spurling v Bradshaw regarding important contractual terms.

Answer 6

Red hand rule.

Question 7

Which case highlights that regardless of whether a party has read the terms, if they are given sufficient notice, they are bound.

Answer 7

Parker v Southeastern Railway.

Question 8

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.

Answer 8

McCutcheon v MacBrayne.

Question 9

What are the four approaches to the interpretation of a contract?

Answer 9

1. Literal - what does the contract say and what are the ordinary meanings of the words concerned?
2. Factual Matrix - Based on three key elements
3. The iterative approach - Mix of both literal and factual matrix approaches
4. Contra Proferentum - Usually applied to contract with standard terms, where the court will interpret against the party seeking to rely on the clause.

Question 10

What are the three key elements of the factual matrix approach to the interpretation of a contract?

Answer 10

1. The whole commercial context.
2. Commercial sensibility - commercial awareness of the relevant market (e.g. R&J Dempster v Motherwell Bridge and Engineering Co.)
3. Prior cummings - what was known to both parties before contract was concluded

Question 11

Which case highlights The Iterritive approach to contracting?

Answer 11

Arnold v Britton

Question 12

What case highlights contra profenendum ?

Answer 12

Life Association of Scotland v Foster

Question 13

Which case highlights unjustified enrichment?

Answer 13

Cantiere San Rocco SA v Clyde Shipping & Engineering Co. Ltd