Incorporation of Terms: Course of Dealings

Terms can be incorporated into a contract through a course of dealings.
This occurs when terms have been made known through earlier dealings between the parties.

When parties have a history of prior and consistent dealings (similar transactions), terms in those earlier transactions can be incorporated into a later contract.
This is the case even if the parties don't explicitly incorporate those old terms into the later contract.
Principles of timing, reasonable notice, and drawing attention to onerous terms may not need to be strictly complied with.

By continuing to transact with the other party seeking to impose terms, a party shows a willingness to be bound by those terms.
It's efficient; avoids reinventing the wheel for each transaction.

Consider relying on this principle when:
- There's an onerous clause (e.g., exemption clause) one party tries to impose.
- The clause hasn't been signed (otherwise, incorporation by signature applies).
- There's an issue with reasonable notice (otherwise, incorporation by notice applies).
- There's a history of repeated transactions.

A term was incorporated into a contract where adequate notice might have been an issue.

Mr. Robertson entered Bellmaine New Ferry's private wharf and paid 1p to enter.
He missed his ferry and wanted to exit.
Bellmaine New Ferry charged entrance and exit fees (1p each) regardless of ferry usage.
Robertson refused to pay to exit and was detained.
He sued for false imprisonment and assault.
Bellmaine New Ferry argued they had a right to detain him because he didn't pay the exit fee.
A notice at the entrance stated a fare of 1p must be paid on entering and leaving, irrespective of ferry travel.

The High Court held that the term was incorporated through prior dealings.
Whether or not reasonable notice was given is immaterial due to the prior dealings.
Robertson entered the wharf with actual knowledge of the conditions, given his frequent prior travels.
He impliedly agreed to those conditions.
Key takeaway: Incorporation through prior dealings can apply even without adequate notice in the specific transaction.

Prior dealings must be regular and uniform:
- A lack of similarity between transactions suggests no agreed set of terms.
- Best suited where the same contract is used repeatedly.
Document character:
- If the document relied upon in previous transactions wouldn't reasonably be considered contractual, it can be argued the terms were never incorporated.

Involved the supply of machinery.
An exclusion clause included at the time of delivery (but included in prior dealings) was not incorporated.
The delivery document could reasonably be understood as merely acknowledging delivery, not containing contractual terms.

Course of dealings is a third way to incorporate terms into a contract for repeated transactions. The next video will discuss the incorporation of statements made during negotiations.