Incorporation of Terms AO3

Common law

Introduction

Terms can be incorporated through various ways e.g. signature, notice and course of dealings
Only incorporated terms can be enforced.

Incorporation by Signature

Terms are binding if they are signed
L’estrange V Gracuab- C signed a contract without reading it, the contract had a small print clause excluding liability for faults in the machine, when the machine didn’t work properly, she tried to claim damages. She was unable to claim as she had signed the contract which included the exclusion clause
Fair as it promotes certainty, and promotes a standard that people should read contracts carefully before signing them
However, unfair if a party didn’t read the terms (can lead to harsh results).

Incorporation by Notice

Terms must be reasonably brought to the attention of the other party before or at contract formation
Olley V Marlborough Court- Notice was not reasonable as it was seen in the hotel room after C had paid, Notice said no liability for stolen property and C’s jackets were stolen
Protect parties who are in a contract but were properly/ reasonably informed.
What counts as “reasonable notice” can be unclear→ Seen in Thompson V LMS Railway → C was illiterate, but the ticket being a reasonable notice was still seen as a notice
However it is reasonable to assume most people can read, and a line has to be drawn some where for what is a sufficient notice

Incorporation by Course of Dealings

Terms can be incorporated if parties have done business repeatedly under the same terms

Useful in ongoing commercial relationships, as it keeps a good standard to be usually obliged by
The issue to what counts as a consistent course of dealings can be subjective
McCuthcheon V McBrayne- Exclusion clause for a ferry sinking was not seen as sufficient as it was not always consistently used in previous courses of dealings
→ Uncertainty may arise because of this

Conclusion

→ Link to Question

Statutory Controls