WK 7 - Incorporation of Terms Flashcards
In what circumstances can an express term that has not been negotiated by the parties form part of a contract?
How can non-negotiated express terms be incorporated? (3)
(1) Signature
(2) Reference at time of contraction (notice)
(3) By course of dealing between parties
A bus company wishes to purchase 20 new electric buses to expand business operations. Buses delivered and put into operation. A passenger wants to go into town on a new, electric bus.
Non-negotiated term may be incorporated through:
- Signature
- Reference to T&C’s
- (Likely) previous course of dealing between parties
A student wants to upgrade their phone plan. They go to a local mobile phone shop and sign a contract.
How might an express term be incorporated between the student and mobile phone shop?
Unlikely a term was incorporated by signature, or previous course of dealing.
Rather, reference to T&C’s
A café owner has had fresh seasonal fruit and veg delivered weekly by a local farm. Two weeks ago, owner sends voice note to order 20 pumpkins. Farmer replied via email, she doesn’t read this until they’re delivered. There has been a 25% price increase compared to last year due to poor harvest and high demand, explained in the email.
How might an express term be incorporated between the café owner and the farm?
What is the effect of a signature?
Binds the parties to the contract
What is a signature an indication of?
Assent
When signing, what are parties assenting to?
Assenting to terms of rights and obligations, which are legible, not onerous/ambiguous, misleading or unusual.
What is necessary for incorporation by signature to be valid?
- An indication of assent
- Fair notice of unusual/special conditions
What is necessary for an e-signature to apply?
Term must be clear.
When are terms incorporated by reference to T&Cs
If document referring is contractual
(e.g., bus ticket)
If not, does not incorporate terms
(e.g., invoices, receipts, acceptance/delivery notes)
What is necessary for incorporation of T&Cs to be valid?
- Must be a ticket>voucher
- Must have reasonable notice
Explain Lord Denning’s red hand rule
Express terms must have significant effort to make them visible
How does Lord Denning say it is best to incorporate terms?
- Written document signed by party to be bound
- Clear written notice of terms
- Prominent public notice
- Express oral stipulation
Define course of dealing
A series of transactions prior to one in question
What are further requirements of course of dealing
- Parties know of the conditions and have assented to them
