Express terms

Question 1

What are express terms and how are they ascertained?

Answer 1

Terms the parties intended to be bound by. This can be demonstrated in different ways:
* signed written contract
* incorporation by notice
* other ways of agreeing express terms
* incorporation by course of dealings

an objective test when ascertaining express terms

Question 2

What is a signed written contract?

Answer 2

• Written terms are set out in a signed contract - this shows parties are intended to be bound by it (need not to read the terms or understand the meaning)
• an exception where a document signed is not one that intended to have any contractual effect is e.g., where document is acknowledging receipt of goods or timesheet signed - terms in document do not form part of contract because document does not indicate an intention to be bound by terms

Question 3

Incorporation by notice?

Answer 3

• Terms will form part of contract if reasonable steps have been taken to bring them to the other party’s attention - party’s persistence with transaction suggests and intention to be bound by terms.
• what amounts to reasonable steps: terms referenced to another document (e.g., ticket)
• what amounts to insufficent notice: clauses was not referred to at front of ticket but back and where clause was illegible due to printing being so small.
• terms will be incorporated by notice if document was intended to have contractual effect

Document must clearly direct attention to terms for incorporation but if terms are hidden, unclear or illegible they aren’t incorporated.

Question 4

Incoporating by notice - onerous clauses?

Answer 4

If party wants to incorprate terms that are adverse to other party, it must clearly bring this to the other party’s attention - these terms are onerous as such sufficient notice should be given by e.g., red ink or red hand pointing to clause.
* However, if document containing contractual terms is signed the signing party is bound by terms even if offending term is onerous.

Question 5

When can incorporation of terms by notice be given?

Answer 5

Either before or at time of contracting but if communictaed after then any clauses following after do no amount to a binding term.

Question 6

Incorporation by course of dealing?

Answer 6

• where a clause has been brought to the notice of other party during previous dealings, it may be implied into current transaction to give effect to presumed intention of parties, even where on this particular occassion it has been omitted - to succeed must show course of dealings has been consistent over a period of time
• not only consistent but course of dealing must be regular - course of dealing will not be established if parties have contracted with each other a few occassions over number of years.

Question 7

What are the other ways in which express terms can be agreed?

Answer 7

• agreement of terms in conversation/verbal exchange
• terms being set out in writing (e.g., email) and other party agrees by replying to email.

Commanality is that these tersm adequately express an intention for parties to be bound by it.

Question 8

What is an entire agreement clauses?

Answer 8

It’s where parties agree this agreement constiutes the entire agreement between them and superseded any previous understanding and/or agreements between them, whether oral or written.
* in this case, a party cannot rely on an earlier verbal promise as written contract is the whole agreement - helps to limit confusion if any
* aren’t effective to exclude liability for misrepresentation