This is an extract of our Exclusion Incorporation document, which we sell as part of our LAWS202 Law of Contract Notes collection written by the top tier of Univerity Of Otago students.
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Exclusion - Incorporation Thursday, 9 September 2010 4:18 p.m.
Exclusion clause incorporated?
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
Clause applies Parker v South Eastern Rly
No Incorporated (notwithstanding not actually being read) - Graucob
* 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
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  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
 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 
(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
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