ELEMENTS OF LAW OF CONTRACT - REGULATION OF CONTRACTUAL TERMS

INCORPORATION, EXCLUSION CLAUSES AND
REGULATION OF CONTRACTUAL TERMS

There are various ways in which clause could be incorporated into a contract. Some of these ways are where parties signed the contract specifying the inclusive and exclusive element of the contract they are bounded by their signature L’Estrage v Chemical Cleaning and Dyeing Co (1951); and Curtis v Chemical Cleaning and Dyeing Co. (1951) Chuler v Wickman Machine Tool Sales (1974). This could also be achieved by a party given a reasonable to the other parties Interfoto Picture Library Ltd v Stileto (1989) and Thorton v Shoe Lane Parking (1971) Curtis. This could also be achieved as a result of previous course of dealing as in Spurling v Bradshaw (1956). Condition reasonable notice condition that failure to make.

The Unfair Contract Terms Act (1977) and Unfair Terms in Consumer Contract Regulation (UTCCR) 1999 are two legislative instrument which regulate contracts. he major manufacturers certain times in a week. The condition that failure to make Schuler v Wickman Machine Tool Sales (1974): The term that the agent must visit the major manufacturers certain times in a week. The condition that failure to make some the visit will lead to termination of the contract was considered unfair. Lombard North Central Finance v Butterworth (1987) – CA held that clause 2(a) of a computer lease agreement made prompt payment a condition of the contract so that non-compliance entitles the plaintiff to terminate the contract and recover damages for loss of the transaction even breach itself was not regarded as giving rise to serious consequences. Hong Kong Fir Shipping v Kawasaki (1962): CA held that although there was a breach of the charterparty because the ship was unseaworthy, seaworthiness was not a condition entitling the charter to terminate. The delay caused by the breakdowns and repairs was no so great as to frustrate the commercial purpose of the charter. Ship chartered for 24 months, the chief engineer was not competent and with 17 month left of the original contract, attempt being made to terminate. Olley v Marlborough Court Hotel (1949): the CA held that since a contract was made at the reception desk, the notice in the bedroom came too late and were not incorporated. Chapleton v Barry UDC (1940); HL held that the ticket was a mere voucher. Only the notice was capable of containing conditions and that made no mention of an exemption. The pile of deck was held to constitute a standing order and a contract was formed when a chair (which eventually gave way and injured the plaintiff) removed from pile. Thorton v Shoe Lane Parking (1971): CA held that the notice came too late since the contract was concluded the moment the car drove up the machine at the defendant’s automatic garage. Parker v South Eastern Rly (1987): CA held that the judge misdirected the jury as he did not ask whether the defendant has taken reasonable steps to give the defendant notice of the condition. Notice at the back of a receipt after payment was considered inadequate. Director-General of Fair trading v First National Bank Plc (2002) HL; UTCCR 1999 ss.4-6, Sch.2) – The HL held that a term of a loan agreement which provided for interest to be paid at the contractual rate on sums owing both and after judgement did not fall within reg. 3(3)(b). It was an incidental term setting out the consequences of default by the borrower. Cehave v Bremer HG (The Hansa Nord) 1976): CA held that the term shipment in good condition did not give a rise to reject unless the breach went to the root of the contract since the entire cargo was used for the intended purposes as animal feed. Though entitled to damages, but not entitled to rejection. German seller and Dutch buyer of 12,000 tons of US Citrus pulp pellets. Inominate terms it appears the consequences are not sufficiently serious for termination of the contract. R&B Customs Brokers Co. Ltd v United Dominions Trust Ltd (1988); HL held that they had dealt as consumer since the use of the car in their business was not sufficient regularity. It was a third car. And clause 2(a) of SoGA 1979 did not apply. Stevenson v Rogers, (1999): CA A transaction would be made in the course of a business unless it was a purely private transaction. Feldaroll Foundry Plc v Hermes Leasing (London) Ltd (2004) – Lamborghini car bought for the use of a director, it was held that the company was dealing as a consumer. St. Albans City District Council v International Computers Ltd (1995). Limitation of £100,000 placed on contract for the supply of software to produce data for poll tax candidates was held to be unreasonable when the software contained an error which cost the local council a lot of money. It was a standard term, the company has already insured the loss, and the company has the expertise, while the local council and its citizen would loose if held otherwise. Gow v Tui UK Ltd (t/a Crystal Holidays (2006): Holiday case, backyard accommodation. It was held that the industry practice was to hold that there was no contract when the agent provisionally accepted the customer’s offer and the agent’s invoice was the contractual document. Notice on the terms and conditions was sufficient to incorporate them into the contract as the customer was aware of them. (Gow 2006). amhill v Edwards (2004): A caravan was 102 inch instead of the 100 inches permitted in UK. The claimant argued that there was an implied term that the vehicle must be of satisfactory quality. (Bramhill 2004). CA held that there was no implied term by reason of s.14(2) and there was no breach. Had there been an implied term there would have been a defence under s.14(2c) as the vehicle was bough ‘as seen’. In addition, there would be no damages because the purchaser were unable to establish if the extra two inches made any difference in value. Crossley v Faithfully & Gould Holdings Ltd (2004) ECWA Civ 293 The CA declined to find that there was an implied term with the contract of employment which provided that an employer ought to take care of an employee’s economic well-being. The introduction of such term would place an intolerable burden upon employer. The employer lost long-term sickness benefit when he retired on his own (Crossley 2004). Paragon Finance Plc v Pender (2005) EWCA Civ 760 The implied term - interest rate should not be fair) (Paragon 20005).