Exclusion Incorporation Notes

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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

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