week ten

Question 1

what are express terms in a contract

Answer 1

terms expressed and agreed upon by the parties

Question 2

what are implied terms in a contract

Answer 2

terms that are implied into the contract - the terms of the contract that are not expressed and agreed upon

Question 3

how can terms be expressed

Answer 3

either orally or in writing, but oral terms are usually clear because you are actually saying them to the other person

Question 4

what happened in L’Estrange v Graucob

Answer 4

L’Estrange, a cafe owner, entered into an agreement with Graucob to buy a vending machine, which included the clause:

this agreement contains all terms and conditions under which I agree to purchase the machine, any express or implied condition, statement, or warranty, statutory or otherwise not stated herein is hereby excluded

when the cigarette machine did not function properly, and Graucob couldn’t fix it, she tried to terminate the agreement and when Graucob resisted, sued for damages

Question 5

what was the result in L’Estrange v Graucob

Answer 5

L’Estrange couldn’t get any remedy or recover at all in relation to the machine.

Scrutten LJ: when a document containing contractual terms is signed, then, in absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether they have read the document or not

Question 6

what happened in Toll Pty Ltd v Alphapharm Ltd 2004

Answer 6

the document, which said to please read the conditions of contract prior to signing, was signed by a representative of Alphapharm for the shipping of flu vaccines. One of the terms was an exclusion term, excluding Tolls liability for damages.

In shipping, the vaccine dropped below the proper temperature and was spoiled.

Alphapharm tried to recover

Question 7

what approach was decided in Toll Pty Ltd v Alphapharm and what was the final result

Answer 7

couldn’t recover for the spoiling of the flu vaccines, objective approach! when a sign a document with terms, you are bound by those terms.

Question 8

what is actual authority

Answer 8

where the principal actually authorises the agent, either express or implied from the circumstances - look at what was actually said to the person

Question 9

what is apparent authority

Answer 9

where the principal holds out the agent as having authority - usually a letter, no price on it

Question 10

what is a unilateral offer

Answer 10

an offer to the world or a group of people, accepted by performance

Question 11

what does looking at the circumstances of the case for whether someone can revoke a unilateral contract require

Answer 11

how onerous it is, what its cost them etc.

Question 12

the notice for terms of un-signed documents to be incorporated must be ___ and ____ ____

Answer 12

timely, reasonably sufficient

Question 13

what is the idea of timeliness in relation to incorporation of terms of unsigned documents

Answer 13

was the notice given before the contract was formed?

Question 14

what happened in Olley v Marlborough Court

Answer 14

long term residential hotel occupants left keys on the key board in reception. a person came, took the keys and stole valuables from their room.

the hotel’s defence was that there was a sign against liability in the room.

held: contract was formed before notice was seem, therefore, this term was not part of the contract

Question 15

what happened in Thornton v Shoe Land Parking

Answer 15

Mr T, parking, took a ticket from a machine and paid on his way back to his car. as he was putting his things into his boot, him and his car were injured.

the ticket from the machine had an exclusion of liability for personal injury.

court held the contract was formed when he took the ticket, so the term on the ticket came too late and were not a part of the contract. the notice about cars being at owners risk on the building was effectively incorporated - no recovery for the damage to the vehicle

Question 16

what is the idea of ‘reasonably sufficient’ for incorporation of terms into a contract where it isn’t signed

Answer 16

if the term is more unreasonable, you might have to draw particular notice to it.

Denning LJ: “I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it”

Question 17

what happened in Interfoto Picture Library v Stiletto Visual Programmes

Answer 17

Interfoto sent transparencies to Stiletto and said they could call back and say whether that is what they wanted when they arrived. There was a delivery note with them which said there was a charge of 5 pounds per day per transparency late - they were late and IP charged Stiletto 3783.50 in late fees.

while the late fee was fair, the amount of it was too much - the court said it should be something like 3.50 a week. because the fee was particularly onerous, the court held they did not give enough notice of that term

Question 18

what is a clickwrapped term

Answer 18

where you have to click to say you read for example terms and conditions on a website

Question 19

what was the outcome of a clickwrapped term in feldman v google, inc

Answer 19

the term was clicked that it was agreed to, therefore validly incorporated

Question 20

what happened in Nguyen v Barnes & Noble

Answer 20

on the B&N site there was a page of T’s & C’s including an arbitration clause. there was a link to this page in the bottom left corner of every web page on the site, as well as at checkout.’

the claimant didn’t read them when placing his order for two heavily discounted touchpads, which B&N refused to supply due to high demand.

was there reasonable notice of the terms? no, the terms were not sufficiently prominent on the B&N website

Question 21

what happened in J Spurling v Bradshaw

Answer 21

Spurling, a warehouse company, received Bradshaw’s OJ and then sent a receipt with terms and conditions on it. this was too late to be incorporated by notice as the contract was already formed.

but, because bradshaw had used the company a number of times previously, and each time received the receipt with the same set of terms, the terms were held to be part of the contract

Question 22

what happened in McCutcheon v David MacBrayne

Answer 22

McCutcheon put his car on a ferry and the boat sank. the customers were supposed to sign a risk note when they paid for the ferry trip, which excluded the ferry operators liability for damage or loss, but the employee had forgotten to get them to sign it.

the customer had previously used the ferrys on a number of occassions, but because sometimes they had to sign and sometimes they didn’t, the inconsistency meant there was no incorporation

Question 23

what is a mixed contract

Answer 23

the court asks what the parties objectively intended with their written and oral parts of their contracts

Question 24

what happened in Newmans Tours v Ranier Investments

Answer 24

they were selling some tour companies but wanted an employee to stay on so the vendors agreed to pay him $100,000 out of the purchase price in an oral agreement during negotiations.

they subsequently signed a written agreement which didn’t mention the payment.

in court, the term was included because although it seemed the written contract was comprehensive, a separate payment to an employee wouldn’t normally be part of a sale and purchase agreement anyways