incorporation

3 classifications of terms

condition - breach always gives innocent party right to terminate contract and claim damages

warranty - breach never gives innocent party right to terminate contract, can only claim damages

innominate term - innocent party can always claim damages but can only terminate contract of effect of breach serious enough

lestrange v graucob

c bought machine and didn’t read contract. exclusion clause exempting seller from claims related to faults in machine.

c held to be bound by exclusion clause despite not knowing - duty to read contract before signing, especially if part of business dealings

grogan v robin meredith plant hire

signature must be made on a contractual sort of document to be incorporated

mccutcheon v macbrayne

clause not incorporated as buyer couldn’t be bound by clause on basis of previous course of dealings when he didn’t have knowledge of specific term (oral agreement that didn’t refer to it)

here, there hadn’t been sufficiently consistent course of conduct for term to be incorporated

amiri flight authority v bae systems

reasonable notice of provisions may be needed in cases of consumers

reasonableness factors

• objective test

• timing

• type of document

• course of dealing

• trade custom

• type of term

thompson v london midland & southern railway co

objective test of reasonableness - concerned old, illiterate person who couldn’t read conditions for travel.

held that whether c could/had read document irrelevant, only question whether reasonable notice given

olley v marlborough court

exemption clause found in notice in hotel room. however, decided that contract concluded at checkin at reception, so notice couldn’t be incorporated

chapelton v barry udc

d couldn’t rely on exclusion clause as it was only written on back of ticket, which reasonable person would just view as receipt

hollier v rambler motors

to incorporate term from regular course of dealing, course of conduct has to be regular, not just consistent

here, taking car for repair ¾ times in past 5 years not sufficient

british crane hire v ispwich crane hire

both parties in business of hiring cranes and both used standard terms and conditions.

although not explicitly mentioned, courts incorporated standard terms due to nature of parties, etc

scheps v fine art logistic

failed to incorporate terms on this basis, as d and c weren’t equal in the trade, and no good reason to objectively think c was agreeing to that sort of limitation clause

thornton v shoe land parking

adequate notice not given for onerous term excluding liability for personal injury - not enough to put it on pillar for this

interfoto picture library v stiletto visual programmes

onerous clause in regard to late fees (which were excessive) held to not have sufficient notice drawn to them, so couldn’t rely on term (regardless of parties being commercial)

aeg v logic resource

very onerous clause without sufficient notice (clause that purchaser had to pay for shipping back of defective good even if seller is responsible)

obrien v mgn

clause usually mentioned in newspaper that if several people win scratch card, they are all entered into a prize draw to see who gets it. this time, didn’t print the rule but stated that normal rules apply (as previously printed)

held that mgn had done enough (industry standard + reference on page as to rules) ALSO doesn’t deprive c of anything they had before

parker grennan v camelot uk lotteries

clicking ok on t&cs is sign of acceptance of contract terms, and they are incorporated sufficiently