Express terms

Question 1

What is the fundamental principle used to ascertain the express terms of a contract?

Answer 1

The process is a search to ascertain what an objective observer would think the parties intended to be bound by.

Question 2

List the four main ways express terms can be incorporated into a contract mentioned in the source material.

Answer 2

1. A signed written contract
2. incorporation by notice
3. incorporation by a course of dealing
4. other ways of agreeing terms (e.g., verbal).

Question 3

What is the general legal effect of signing a written contract?

Answer 3

In almost all cases, signing a contract shows an intention to be bound by its terms, making them all binding.

Question 4

According to L’Estrange v Graucob Ltd, is a party bound by the terms of a contract they signed but did not read or understand?

Answer 4

Yes, a party is bound by the terms of a signed contract even if they have not read or understood them.

Question 5

Under what circumstance, established in Grogan v Robin Meredith Plant Hire, will signing a document NOT incorporate its terms into a contract?

Answer 5

If the document signed was not one which was intended to have any contractual effect (e.g., a timesheet or receipt).

Question 6

In Grogan v Robin Meredith Plant Hire, why was the timing of the signed document significant?

Answer 6

It was described as a ‘post contractual document’, making it much less likely it was intended to have contractual effect.

Question 7

According to Curtis v Chemical Cleaning and Dyeing Co, what can prevent a party from relying on a clause in a signed document?

Answer 7

If the party has orally misrepresented the meaning or effect of the clause to the other party before signing.

Question 8

What principle regarding incorporation by notice was established in Parker v South Eastern Railway Co?

Answer 8

Terms will form part of the contract if reasonable steps have been taken to bring them to the other party’s attention.

Question 9

What is the objective justification for the ‘reasonable notice’ rule in contract law?

Answer 9

Where reasonable steps have been taken to draw terms to a party’s attention, that party’s persistence with the transaction suggests an intention to be bound.

Question 10

What did Thompson v London, Midland & Scottish Railway establish about incorporating terms?

Answer 10

It established that terms may be incorporated by reference to a different document (e.g., a ticket referring to a railway timetable).

Question 11

In Henderson v Stevenson, why was notice of a clause on a ticket deemed insufficient?

Answer 11

The clause was not referred to on the front of the ticket.

Question 12

In Sugar v London, Midland & Scottish Railway, why were the terms not incorporated into the contract?

Answer 12

The clause was illegible, meaning sufficient notice had not been given.

Question 13

What special requirement applies when a party wants to incorporate a particularly adverse or onerous term by notice?

Answer 13

The party must clearly and specifically bring this term to the other party’s attention.

Question 14

In Thornton v Shoe Lane Parking, what did Lord Denning suggest might be required to give sufficient notice of an onerous clause?

Answer 14

He stated it would need to be ‘printed in red ink, with a red hand pointing to it, or something equally startling’.

Question 15

Which case confirmed the principle from Thornton v Shoe Lane Parking regarding the incorporation of onerous terms?

Answer 15

Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989].

Question 16

Does the ‘red hand rule’ for onerous clauses apply if the document containing the clause has been signed?

Answer 16

No, if a document is signed, the signing party is bound even by onerous clauses (L’Estrange v Graucob Ltd).

Question 17

For a term to be incorporated by notice, when must the notice be given?

Answer 17

Notice must be given before or at the time of contracting; notice given after the contract is made is ineffective.

Question 18

In an automatic ticket machine scenario like Thornton v Shoe Lane Parking, when is the offer made?

Answer 18

The offer is made when the proprietor of the machine holds it out as being ready to receive the money.

Question 19

In an automatic ticket machine scenario like Thornton v Shoe Lane Parking, when does acceptance take place?

Answer 19

Acceptance takes place when the customer puts their money into the slot.

Question 20

In Thornton v Shoe Lane Parking, why were the conditions printed on the ticket not incorporated into the contract?

Answer 20

The contract was concluded when the money was put into the machine, so the ticket came too late to introduce new terms.

Question 21

For terms to be incorporated by notice, the document giving notice must be intended to have _____, as shown in Chapleton v Barry UDC.

Answer 21

contractual effect

Question 22

In Chapleton v Barry UDC, why were the terms on the back of a ticket for a deckchair hire not binding?

Answer 22

Because the ticket was considered by an objective observer to be a receipt, not a document with contractual effect.

Question 23

How can terms be incorporated into a contract by a ‘course of dealing’?

Answer 23

Where a clause was used in previous dealings between parties, it may be implied into the current contract if omitted.

Question 24

What is the first condition required for a term to be incorporated by a course of dealing?

Answer 24

The course of dealing must have been consistent over a period of time.

Question 25

Why did the attempt to incorporate terms by a course of dealing fail in McCutcheon v David MacBrayne?

Answer 25

The **course of dealing was not consistent**; sometimes a signature was required for the terms, and sometimes it was not.

Question 26

What is the second condition required for a term to be incorporated by a course of dealing?

Answer 26

The course of dealing must have been regular.

Question 27

In Hollier v Rambler Motors (AMC) Ltd, why was a course of dealing not established?

Answer 27

Three or four transactions over a period of five years was held to be insufficiently regular.

Question 28

What is the primary purpose of an 'entire agreement' clause in a written contract?

Answer 28

To reduce uncertainty by providing that a specific document constitutes the entire agreement, superseding previous arrangements.

Question 29

What effect might an 'entire agreement' clause have on oral statements made during negotiations?

Answer 29

It can be effective in preventing oral terms or preceding written statements from forming part of the contract.

Question 30

What type of claim is an 'entire agreement' clause unlikely to be effective in excluding?

Answer 30

It is unlikely to be effective to exclude liability for misrepresentation.

Question 31

In Parker-Grennan v Camelot UK Lotteries Ltd, what method was used to present the terms and conditions to the online player?

Answer 31

The terms were accessible through hyperlinks, and players had to agree by clicking a tick box and pressing 'confirm'.

Question 32

What was the Court of Appeal's finding in Parker-Grennan v Camelot UK Lotteries Ltd regarding online terms and conditions?

Answer 32

The court found that reasonable steps had been taken to bring the relevant clauses to the claimant’s attention, making them binding.