#8375 - Exclusion Incorporation - LAWS202 Law of Contract

Exclusion - Incorporation Thursday, 9 September 2010 4:18 p.m. Exclusion clause incorporated? Signed contract Unsigned contract Misrep, duress, undue influence, fraud? - Curtis Situation where not signature not reasonably expected to be binding? - Toll Documents signed not objectively intended to incorporate clause? - Nalder & Biddle Yes Not incorporated Actual knowledge Clause applies Parker v South Eastern Rly No Incorporated (notwithstanding not actually being read) - Graucob Reasonable notice * Reference Thompson v Midland Limit: onerous clauses require 'red hand' - Thornton, Interfoto * Trade custom British Crane Hire Limit: same industry, equal bargaining power * Previous dealing Seven Electrical Limit: must be consistent - McCutcheon Statutory attempts to thwart exclusion clauses: Consumer Guarantees Act 1993 * S 43(1) - The Act applies despite attempts to limit/exclude their liability for breach of statutory warranty * S 43(2) - Supplier/manufacturer may contract out if ? goods/services are supplied "for purposes of business", ? but only in writing. * Section 2 ? Goods - very wide. Includes animals, trees, vehicles but NOT buildings. ? Services - very wide - performance of work, accommodation, care. ? "In trade" = Fair Trading Act 1986 ? Consumer - two step definition 1) Acquires goods/services of a kind ordinarily acquired for personal/domestic/household use/consumption AND 2) Does not acquire them to resell in trade, or consume them in process of production/manufacture. ? Nesbit v Porter [2000] CA - even if only a small proportion of sales are for personal use, can still fall under section 2. * Guarantees for goods ? S 5 - that the buyer receives good title ? S 6 - that goods are of 'acceptable quality' (defined in s 7) ? S 8 - that if goods are bought for particular purpose which supplier knows of, they are fit for that purpose. ? S 14 - if manufacturer makes an express guarantee about a good, they are bound by it. * Remedies against suppliers of goods who breach guarantees ? S 18 - Demand supplier remedies within a reasonable amount of time. # If not, can gave failure remedied elsewhere at supplier's expense OR # Reject goods (s 22) and get a refund/replacement. ? If failure cannot be remedied or is of a substantial character (s 21) # Can reject goods (s 22), get a refund/replacement (s 23)or get compensation for reduced value. ? Any reasonably foreseeable loss/damage due to failure is claimable by consumer. * Guarantees for supply of services ? S 28 - carried out with "reasonable care and skill" ? S 29 - reaasoanbly fit for any particular purpose, reasonably expected to achieve the particular result the consumer required ? S 30 - completed in a 'reasonable time' (unless contract specifies dates) * Remedies against supplier of services where they breach guarantee ? S 32 - demand supplier remedy failure in reasonable amount of time. # If not, may cancel contract (s 37) or have failure remedied elsewhere and charge supplier. * # Signed If failuredocuments cannot be remedied, or is of substantial character (s 36), consumer can cancel contract (s 37) or get compensation for reduced value. ? Clausedamages applies for any reasonably foreseeable loss resulting from failure. # In addition, # Toll v Alphapharm ? S 37 - cancellation occurs if consumer lets supplier of service know, or does all they can to let them no, that they intend to cancel. # L'Estrange v Graucob [1934] 2can KBge 394 ? S 38 - where a contract is cancelled, consumer refund for money, need not pay more. Can still sue for breach of contract. # Nalder & Biddle v C & F Fishing (actual contract incorporating clauses must be signed) Exceptions: Contractual Remedies? Act 1979 # General rule is a presumption, not an absolute rule. So could prove you have not accepted the clause or didn't know it was there. Section 4 Can avoid you can Courts show misrepresentation inconsistent with the clause, or undue influence, duress etc. (1) Exclusion provisions #purporting toifpreclude from inquiring intois whether Curtis v Chemical Cleaning [1951] (misrep) (a) A statement/promise?was made/given in negotiations leading to contract # Or where the other party could not reasonably expect the other to be bound by a signature - Toll v Alphapharm p9 (b) Contract Page 27