Week Seven Flashcards
What is the focus of understanding express terms in contracts?
Understanding when an express term not negotiated by the parties can form part of a contract.
What are express terms in a contract?
Express terms in a contract are specific conditions that are agreed upon by both parties and are usually in writing. They outline the legal rights and duties of the parties involved
How does signing a document affect the incorporation of express terms?
If a party signs a document, any express terms within it are generally considered to be incorporated into the contract.
How can terms be incorporated by notice at the time the contract is formed?
By explicitly mentioning or providing a reference to these terms when the contract is created.
How does the course of dealing incorporate express terms into a contract?
Repeated conduct or established patterns of behavior between the parties can lead to the incorporation of express terms, relying on historical interactions and practices as evidence of acceptance of these terms.
What are the three ways express terms that have not been previously negotiated can be incorporated into a contract?
Signature
Reference at the Time of Contracting (Notice)
By Course of Dealing Between the Parties
What is the effect of incorporating terms by signature?
Indicates assent to terms
What is a key case that highlights the indication of assent by signature?
Sundolitt v Addison [2017] CSIH 15.
What must assent be given to in terms of incorporation by signature?
Assent must be to clear, fair notice of unusual or special conditions.
What are some relevant cases discussing assent and special conditions?
Montgomery Litho Ltd v Maxwell 1999 SLT 1431: Importance of fair notice.
Brandon Hire Plc v Russell [2010] CSIH 76: Discusses assent and special conditions.
Does incorporation by signature apply to online contracts?
Yes, it applies to online contracts as express assent.
What is the effect of incorporating terms by reference to terms and conditions?
Terms are incorporated if the document referring to them is contractual (e.g., a ticket for a bus).
Are terms incorporated if the document is not contractual?
No, terms are not incorporated if the document is not contractual (e.g., invoices, receipts, acceptance notes, delivery notes).
Why is the timing of the reference critical in the incorporation of terms?
The timing of the reference is critical to ensure the terms are incorporated at the time the contract is formed.
What notable phrase was used in Taylor v Glasgow Corporation?
“For conditions see other side.”
What was the disclaimer in Taylor v Glasgow Corporation?
“The Corporation of Glasgow are NOT responsible for any loss, injury or damage sustained by persons entering or using this establishment or its equipment.”
What does this case illustrate about incorporation by reference?
How terms and conditions are communicated and incorporated into a contract.
When does the offer occur in Thornton v Shoe Lane Parking?
When the parking machine is ready to receive money.
When does acceptance happen in Thornton v Shoe Lane Parking?
When money is placed into the slot.
What was the ticket disclaimer in the case Thornton v Shoe Lane Parking?
“This ticket is subject to the conditions of issue as displayed on the premises.”
What key legal point does the case Thornton v Shoe Lane Parking highlight?
Reasonable sufficiency of notice regarding the terms and conditions.
What does this case exemplify
How terms and conditions are communicated in modern contexts.
What was the signage in Chapelton v Barry Urban District Council?
“Barry Urban District Council. Cold Knap. Hire of chairs 2d. per session of 3 hours.”
What were the details on the ticket in the case Chapelton v Barry Urban District Council?
Front: “Barry Urban District Council. Cold Knap. Chair Ticket 2d. Not transferable.”
Rear: “Available for three hours. Time expires where indicated by cut-off and should be retained and shown on request. The council will not be liable for any accident or damage arising from the hire of the chair.”
What key issue does this case address?
Differences in how terms are presented and incorporated (sign vs. ticket).
What was the notice in the bedroom in Olley v Marlborough Court Ltd?
“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.”
What incident occurred in the case Olley v Marlborough Court Ltd?
Items were stolen from the room
What key question does the case Olley v Marlborough Court Ltd prompt?
Discussion about the notice and its effectiveness in incorporating terms.
What are the methods for proving incorporation by reference?
Written document signed by the party to be bound.
Providing a written notice specifying terms before or at the time of the contract.
A prominent public notice or express oral stipulation can have the same effect.
What did Lord Denning emphasize about insufficient methods of incorporation?
Anything short of these methods will not suffice, as emphasized in the context of Olley v Marlborough Court Ltd.
How are terms and conditions effectively communicated to ensure they form part of a contract?
By using clear, prominent, and timely methods of communication such as written documents, notices, and public postings.
What should be compared and contrasted in the case studies?
The effectiveness of different methods of incorporation by reference.
What was the design of the ticket in Thompson v London, Midland and Scottish Railway Co?
Front of Ticket: “Excursion: For conditions see back.”
Rear of Ticket: Mentions that tickets are issued subject to conditions in the company’s timetables and notices.
Excursion Bill: Notes that excursion tickets are subject to conditions in the company’s current timetables.
Timetable Condition: Includes a term that neither ticket holders nor others have rights of action against the company in case of injury.
What discussion point does the case Thompson v London, Midland and Scottish Railway Co? raise?
Consider if reasonable notice of the existence of terms has been given based on the ticket and accompanying docum
What was the situation in Parker v South Eastern Railway Co?
The case involves a cloakroom ticket.
What key point does the case Parker v South Eastern Railway Co?
Under certain conditions, a reasonable person should expect to find contract terms on a document.
What were the details on the ticket in Parker v South Eastern Railway Co?
Front of Ticket: “See back.”
Rear of Ticket: “The company will not be responsible for any package exceeding the value of £10.”
What is the implication of the Parker v South Eastern Railway Co?
Even non-business or non-legal individuals must acknowledge the existence of contract terms, as business cannot operate if each person had to be explicitly informed about standard documents like a bill of lading.
What is a course of dealing in contract law?
A course of dealing refers to a sequence of previous transactions between parties involved.
What is the objective judgment in a course of dealing?
The parties are expected to know the conditions and have agreed to them.
What were the incident details in McCutcheon v MacBrayne?
A risk note containing 3-4,000 words of conditions was previously signed on four occasions but not in this instance.
What was Lord Reid’s perspective in McCutcheon v MacBrayne?
Implied conditions may exist if parties have a history of similar contracts containing certain conditions.
What was Lord Pearce’s perspective in McCutcheon v MacBrayne?
Highlighted inconsistencies in signing conditions and argued for the acceptance of an oral contract without reference to conditions, in good faith.
What does British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd illustrate about course of dealing?
It is easier to establish a course of dealing when parties operate within the same trade.
