Incorporation Flashcards
Discuss incorporation of terms
Any statement made before the contract is made is a pre-contractual statement. If these statements are incorporated into the contract, they become terms and can be breached. If not, they are merely representations.
In order to work out if the statements were incorporated, what are the factors that courts may have to look at?
- Did the representee place particular importance on the statement?
- Did the representor have special knowledge?
- Timing
- Signing a written document
- Incorporating non-contractual documents
- Incorporation by a regular course of dealings
What does Birch v Paramount Estates show?
The importance and timing between the statement and contract are relevant (ie immediately agreeing to buy the house without seeing it) to deciding if a statement is incorporated.
What does Routledge v Mckay show?
Not putting something in writing is evidence against incorporation.
What does Dick Bentley v Harold Smith show?
If the representor is an expert, their statement is more likely to be relied upon as a term.
What does Oscar Chess v Williams show?
It is not reasonable to rely on a non-expert’s opinion.
What is the general rule of timing in terms of incorporation?
The amount of time between the statement and contract can show the importance of the statement.
What does L’Estrange v Graucob show?
Signed documents are incorporated even if not read or understood.
Discuss Exceptions to the rule from L’Estrange
- Interfoto v Stiletto - Unusual or onerous terms may not be incorporated without special attention drawn to them
- Grogan v Robin Meredith - Signed documents must be contractual, signing non-contractual documents will not automatically incorporate the statements.
- Curtis v CCD - If an oral statement is made about something in the signed contract, the verbal statement is more binding than the written statement.
What does Chapelton v BUDC show?
Non-contractual statements must be clear in order to be incorporated.
What does Parker v SE Railway show?
Non-contractual statements may be incorporated if the reasonable person would know of them.
What does O’Brien v MGN show?
The newspaper had taken reasonable steps to let readers know there were rules and where to find these.
What does Thornton show?
The more onerous the exclusion, the clearer they must be.
What does Hollier v Rambler Motors show?
The little dealings over the 5 years was not enough to establish a ‘course of dealings’.
What does Spurling v Bradshaw show?
Frequent contracts can establish a ‘course of dealings’ allowing notices to be incorporated.
