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Week Seven Flashcards

1
Q

What is the focus of understanding express terms in contracts?

A

Understanding when an express term not negotiated by the parties can form part of a contract.

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2
Q

What are express terms in a contract?

A

Express terms in a contract are specific conditions that are agreed upon by both parties and are usually in writing. They outline the legal rights and duties of the parties involved

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3
Q

How does signing a document affect the incorporation of express terms?

A

If a party signs a document, any express terms within it are generally considered to be incorporated into the contract.

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4
Q

How can terms be incorporated by notice at the time the contract is formed?

A

By explicitly mentioning or providing a reference to these terms when the contract is created.

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5
Q

How does the course of dealing incorporate express terms into a contract?

A

Repeated conduct or established patterns of behavior between the parties can lead to the incorporation of express terms, relying on historical interactions and practices as evidence of acceptance of these terms.

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6
Q

What are the three ways express terms that have not been previously negotiated can be incorporated into a contract?

A

Signature
Reference at the Time of Contracting (Notice)
By Course of Dealing Between the Parties

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7
Q

What is the effect of incorporating terms by signature?

A

Indicates assent to terms

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8
Q

What is a key case that highlights the indication of assent by signature?

A

Sundolitt v Addison [2017] CSIH 15.

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9
Q

What must assent be given to in terms of incorporation by signature?

A

Assent must be to clear, fair notice of unusual or special conditions.

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10
Q

What are some relevant cases discussing assent and special conditions?

A

Montgomery Litho Ltd v Maxwell 1999 SLT 1431: Importance of fair notice.

Brandon Hire Plc v Russell [2010] CSIH 76: Discusses assent and special conditions.

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11
Q

Does incorporation by signature apply to online contracts?

A

Yes, it applies to online contracts as express assent.

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12
Q

What is the effect of incorporating terms by reference to terms and conditions?

A

Terms are incorporated if the document referring to them is contractual (e.g., a ticket for a bus).

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13
Q

Are terms incorporated if the document is not contractual?

A

No, terms are not incorporated if the document is not contractual (e.g., invoices, receipts, acceptance notes, delivery notes).

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14
Q

Why is the timing of the reference critical in the incorporation of terms?

A

The timing of the reference is critical to ensure the terms are incorporated at the time the contract is formed.

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15
Q

What notable phrase was used in Taylor v Glasgow Corporation?

A

“For conditions see other side.”

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16
Q

What was the disclaimer in Taylor v Glasgow Corporation?

A

“The Corporation of Glasgow are NOT responsible for any loss, injury or damage sustained by persons entering or using this establishment or its equipment.”

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17
Q

What does this case illustrate about incorporation by reference?

A

How terms and conditions are communicated and incorporated into a contract.

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18
Q

When does the offer occur in Thornton v Shoe Lane Parking?

A

When the parking machine is ready to receive money.

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19
Q

When does acceptance happen in Thornton v Shoe Lane Parking?

A

When money is placed into the slot.

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20
Q

What was the ticket disclaimer in the case Thornton v Shoe Lane Parking?

A

“This ticket is subject to the conditions of issue as displayed on the premises.”

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21
Q

What key legal point does the case Thornton v Shoe Lane Parking highlight?

A

Reasonable sufficiency of notice regarding the terms and conditions.

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22
Q

What does this case exemplify

A

How terms and conditions are communicated in modern contexts.

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23
Q

What was the signage in Chapelton v Barry Urban District Council?

A

“Barry Urban District Council. Cold Knap. Hire of chairs 2d. per session of 3 hours.”

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24
Q

What were the details on the ticket in the case Chapelton v Barry Urban District Council?

A

Front: “Barry Urban District Council. Cold Knap. Chair Ticket 2d. Not transferable.”

Rear: “Available for three hours. Time expires where indicated by cut-off and should be retained and shown on request. The council will not be liable for any accident or damage arising from the hire of the chair.”

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25
What key issue does this case address?
Differences in how terms are presented and incorporated (sign vs. ticket).
26
What was the notice in the bedroom in Olley v Marlborough Court Ltd?
"The proprietors will not hold themselves responsible for articles lost or stolen, unless handed to the manageress for safe custody. Valuables should be deposited for safe custody in a sealed package and a receipt obtained."
27
What incident occurred in the case Olley v Marlborough Court Ltd?
Items were stolen from the room
28
What key question does the case Olley v Marlborough Court Ltd prompt?
Discussion about the notice and its effectiveness in incorporating terms.
29
What are the methods for proving incorporation by reference?
Written document signed by the party to be bound. Providing a written notice specifying terms before or at the time of the contract. A prominent public notice or express oral stipulation can have the same effect.
30
What did Lord Denning emphasize about insufficient methods of incorporation?
Anything short of these methods will not suffice, as emphasized in the context of Olley v Marlborough Court Ltd.
31
How are terms and conditions effectively communicated to ensure they form part of a contract?
By using clear, prominent, and timely methods of communication such as written documents, notices, and public postings.
32
What should be compared and contrasted in the case studies?
The effectiveness of different methods of incorporation by reference.
33
What was the design of the ticket in Thompson v London, Midland and Scottish Railway Co?
Front of Ticket: "Excursion: For conditions see back." Rear of Ticket: Mentions that tickets are issued subject to conditions in the company's timetables and notices. Excursion Bill: Notes that excursion tickets are subject to conditions in the company's current timetables. Timetable Condition: Includes a term that neither ticket holders nor others have rights of action against the company in case of injury.
34
What discussion point does the case Thompson v London, Midland and Scottish Railway Co? raise?
Consider if reasonable notice of the existence of terms has been given based on the ticket and accompanying docum
35
What was the situation in Parker v South Eastern Railway Co?
The case involves a cloakroom ticket.
36
What key point does the case Parker v South Eastern Railway Co?
Under certain conditions, a reasonable person should expect to find contract terms on a document.
37
What were the details on the ticket in Parker v South Eastern Railway Co?
Front of Ticket: "See back." Rear of Ticket: "The company will not be responsible for any package exceeding the value of £10."
38
What is the implication of the Parker v South Eastern Railway Co?
Even non-business or non-legal individuals must acknowledge the existence of contract terms, as business cannot operate if each person had to be explicitly informed about standard documents like a bill of lading.
39
What is a course of dealing in contract law?
A course of dealing refers to a sequence of previous transactions between parties involved.
40
What is the objective judgment in a course of dealing?
The parties are expected to know the conditions and have agreed to them.
41
What were the incident details in McCutcheon v MacBrayne?
A risk note containing 3-4,000 words of conditions was previously signed on four occasions but not in this instance.
42
What was Lord Reid's perspective in McCutcheon v MacBrayne?
Implied conditions may exist if parties have a history of similar contracts containing certain conditions.
43
What was Lord Pearce's perspective in McCutcheon v MacBrayne?
Highlighted inconsistencies in signing conditions and argued for the acceptance of an oral contract without reference to conditions, in good faith.
44
What does British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd illustrate about course of dealing?
It is easier to establish a course of dealing when parties operate within the same trade.
45
What does WS Karoulias SA v Drambuie Liqueur Co Ltd demonstrate about course of dealing?
A course of dealing might negate the contractual effect.
46
Why is explicit communication of onerous terms important?
To ensure that parties are fully aware of and agree to these terms.
47
What case introduced the "Red hand rule" for highlighting unusual terms?
Thornton v Shoe Lane Parking [1971] 2 QB 163.
48
What are some cases highlighting the importance of explicit communication of onerous terms?
Montgomery Litho Ltd v Maxwell 1999 SLT 1431. Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1988] 1 ALL ER 348.
49
What can a series of prior transactions establish in contract law?
A "course of dealing."
50
What can a course of dealing lead to in future contracts?
Conditions being implied if parties are aware and have previously agreed to similar conditions.
51
What is crucial for the effectiveness of a course of dealing?
Consistency and awareness of conditions.
52
What are the exceptions when terms are unusual or onerous?
Explicit communication and agreement are required to ensure these terms are incorporated.
53
What are the key questions regarding interpretation/construction of contracts?
What is interpretation/construction? Why do we need it?
54
How do courts work out what a term of a contract means
By using the objective test to interpret the terms.
55
What is the importance of the objective test in contract interpretation?
It ensures that the interpretation is based on what the document would convey to a reasonable person.
56
What did Lord Hoffman say about interpretation in ICS Ltd v West Bromwich Building Society [1998] 1 WLR 896?
"Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person…"
57
What is rectification in the context of contract interpretation?
The process of altering a written contract to reflect what was actually agreed upon.
58
What does interpretation involve in contract law?
Understanding contractual terms from the perspective of a reasonable person.
59
Why do courts use the objective test to interpret contracts?
To ensure fairness and clarity in the meaning of terms.
60
What is the key consideration of the literal approach in contract interpretation?
Focuses on the contractual language.
61
What is the main question asked in the literal approach?
What does the contract explicitly state?
62
What factors are considered in the literal approach?
Ordinary Meaning: The typical meaning of the words used. Party Knowledge: Understanding of the surrounding circumstances by the parties involved.
63
What is a case reference for the literal approach?
Bank of Scotland v Dunedin Properties 1998 SC 657.
64
What additional concept is included in the literal approach?
Contextualism.
65
What is a case reference for contextualism?
CS Ltd v West Bromwich Building Society [1998] 1 WLR 896, per Lord Hoffman.
66
What is the objective of the factual matrix/unitary approach?
To understand the full context and purpose of the contract.
67
What elements are considered in the factual matrix/unitary approach?
Purpose and Natural Meaning: What was the contract intended to achieve? Surrounding Context: Facts known to the parties at the time of contracting. Prior Communings: Importance of commercial common sense.
68
What is a case reference for understanding the purpose and natural meaning of a contract?
Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989, per Lord Wilberforce.
69
What are some recent case references for the factual matrix/unitary approach?
Arnold v Britton [2015] UKSC 36. Wood v Capita [2017] UKSC 24.
70
What does the whole commercial context consider?
The entire context of the business arrangement.
71
What are some case references for considering the whole commercial context?
Arnold v Britton [2015] UKSC 36. Wood v Capita [2017] UKSC 24.
72
What is the role of a judge in commercial disputes regarding contract interpretation?
To interpret the contract in a way that makes commercial sense.
73
What are some key cases for the commercially sensible requirement?
R&J Dempster v Motherwell Bridge 1964 SC 308. Rainy Sky SA v Kookmin Bank [2011] UKSC 50.
74
What does consideration of prior negotiations involve?
Looking at the discussions and agreements preceding the contract.
75
What are some relevant cases for considering prior negotiations?
Bank of Scotland v Dunedin Properties 1998 SC 657. Chartbrook v Persimmon Homes [2009] UKHL 38.
76
What is emphasized in the factual matrix and unitary approach to contract interpretation?
Clarity in contract disputes.
77
What are some key case references for the factual matrix and unitary approach?
Luminar Lava Ignite Ltd v Mama Group [2010] CSIH 1. Arnold v Britton [2015] UKSC 36.
78
What are the key concepts in the factual matrix and unitary approach?
Natural and ordinary meaning. Relevant provisions. Overall purpose of the document. Facts and circumstances known to parties at contract formation. Commercial common sense. Exclusion of subjective evidence of intentions.
79
What is the concept of the iterative approach?
Emphasis on a unitary/flexible approach, weighing implications of rival constructions using business common sense (per Lord Hodge), and matching interpretations against contract provisions and commercial consequences.
80
What are some key cases for the iterative approach?
Arnold v Britton 2015. Rainy Sky v Kookmin 2011. Wood v Capita Insurance Services [2017] UKSC 24.
81
What is the contra proferentem rule?
Interpretation against the proferens (party relying on the clause), favoring the other party.
82
Where is the contra proferentem rule typically applied?
In contracts with standard terms.
83
What is an example case for the contra proferentem rule?
Life Association of Scotland v Foster (1873) 11 M. 351.
84
What was the context of the example case Life Association of Scotland v Foster?
Life insurance where the policyholder did not know of illness, and the clause led to forfeiture based on untrue statements, with the insurance company relying on it to refuse payout.
85
What is rectification in contract law?
Concern for terms not reflecting agreed intentions.
86
What legislation covers rectification in Scotland?
ss8-9 Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.
87
What are the key provisions for rectification under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985?
s8(1)(a): Document fails to reflect parties' common intentions. s8(1): Court may order rectification to reflect the true intention. s9: Protection for third parties.
88
What are the roots of unjust enrichment?
Roots in Roman Law, considered by Roman jurists as a part of legal theory and related to the concept of a quasi-contract.
89
What historical reference discusses recovery through condictio indebiti?
Ulpian, Edict, book 26.
90
What is condictio indebiti?
A legal claim for the repayment of a sum that was not due.
91
What is condictio causa data causa non secuta?
A legal claim for something given for a cause that has not materialized.
92
What is condictio ob turpem vel iniustam causam?
A claim for the return of something given for a corrupt or unlawful cause.
93
What is condictio sine causa?
A general claim for recovery of things given without any legal basis.
94
When does a decrease in assets or increase in liabilities occur?
When rendering a service, doing work, or when someone else uses one's assets.
95
When is enrichment considered unjustified?
If it is unsupported by legal ground
96
When is enrichment not considered unjustified?
If it occurs due to: A legacy A contract A court order
97
What was the situation in Cantiere San Rocco SA v Clyde Shipbuilding & Engineering Co Ltd?
A contract for the supply of marine engines, with the first instalment paid, was disrupted by war.
98
What was the issue in the case Cantiere San Rocco SA v Clyde Shipbuilding & Engineering Co Ltd?
How Cantiere could reclaim their money after the contract was disrupted by war.
99
What was the situation in Morgan Guaranty Trust Co of New York v Lothian Regional Council?
Involved a complex financial arrangement where the contract was found to be void.
100
What was the issue in Morgan Guaranty Trust Co of New York v Lothian Regional Council??
Whether the bank could recover the funds, considering the Roman Law position on such matters.
101
What was the situation in Shilliday v Smith?
A couple lived together, got engaged, and later separated, with the pursuer (plaintiff) paying for improvements on the defender’s (defendant) property.
102
What legal principle was highlighted in Shilliday v Smith case?
A person is unjustly enriched at another's expense if they benefit from another's actions or expenses without a legal justification to retain that benefit. (per Lord Rodger)
103
What is repetition in the context of remedies?
Return of money to the rightful party.
104
What is restitution in the context of remedies?
Return of property to the rightful owner.
105
What is recompense in the context of remedies?
Repayment for unjustified expenditure or use.
106
What key point is highlighted in Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd?
The actions of repetition, restitution, and recompense are used as means to achieve the same end, describing the nature of the remedy requested by the court to address enrichment.
107
What did Lord Hope emphasize about these actions?
These actions are about the nature of the remedy to address enrichment.
108
What is negotiorum gestio?
A concept initially considered by Roman jurists, involving one person (the gestor) intervening w
109
How does negotiorum gestio contrast with agency?
Unlike agents, gestors act without prior consent.
110
What are the requirements for negotiorum gestio?
The other person must be absent, unaware, or incapable. The gestor must intend to benefit the other person while expecting to recover their expenses. The intervention must be beneficial.
111

Private Law I (9 decks)

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