GDL Law Notes GDL Contract Law Notes
A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from top students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of GDL notes available in the UK this year. This collection of GDL notes is fully updated for recent exams, also making them the most up-to-date GDL study materials ...
The following is a more accessible plain text extract of the PDF sample above, taken from our GDL Contract Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Exemption clauses are contractual terms that purport to limit or exclude a liability that would otherwise attach itself to one of the contracting parties (obligations affected may be contractual or tortious)
Lord Diplock in Photo Productions v Securior Transport: a clause ‘which excludes or modifies an obligation, whether primary, general secondary or anticipatory secondary’
Primary: from the contract
Secondary: to compensate if there is a breach
Definitional view: Laissez Faire/Freedom of contract
Exclusory approach: Modern approach – paternalistic/interventionist
Enforceability:
Incorporation: is the EC part of the contract
Construction: is it effective in excluding or limiting liability
Statutory Controls: UCTA/Regulations
Incorporation
Signature
Notice, or
A course of dealing
Incorporation must occur: (a) at or before the time of contracting and (b) the clause must appear on a contractual document
Incorporation through signature
When a document containing contractual terms is signed without there being misrepresentation, the signing party is bound (whether or not they have read it
L’Estrange v Graucob: Since E had signed the contract it was irrelevant that she had not read it, even though the sales agreement was in ‘regrettably small print’
Exceptions:
Overriding oral assurance: if the meaning of the clause has been orally misrepresented to the other party it will not be incorporated (Curtis v Chemical Cleaning) – here the sales person said the EC related to damage ‘to beads and sequins’ but it was actually for everything
Nature of document: signature will not incorporate an EC if the document signed does not have contractual effect (Grogan v Robin Meredith – EC written on a timesheet)
Non est factum: where a person signs a document under a fundamental mistake, through no fault of his own, as to the character or effect, then this common law remedy may make the contract void (“this is not my deed”)
Ie fraud: blind/senile
Saunders v Anglia Building Society: here the contract was not void (party who signed contract claimed her glasses were broken)
Incorporation through notice
Party relying on EC must show that he took reasonable steps to bring it to the attention of the other party
Incorporation by reference:
Parker v South Eastern Railway: ticket which said ‘see back’ with the printed notice on the back: was held that the notice was clear and the ticket was a common form of contractual document – the company had taken reasonable steps
Thompson v London, Midland & Scottish Railway: ticket said ‘see back’, and the back directed C to the standard conditions set out in a railway timetable. The C was bound even though he could not read (decision would have been different if the company had been aware of the C’s inability)
Harvey v Ventilatorenfabrik: party relying on the clause knew that the other could not read the language in which the clause was expressed so it was not incorporated
O’Brien v MGN: T&Cs were in a different edition of the Daily Mail to the scratch card - this was sufficient for incorporation by reference
When a document does not have clear words on the face of it, directing attention to an EC on the reverse – it is unlikely that the clause will be incorporated: Henderson v Stevenson
Similarly – if there are clauses that have been rendered illegib le then they are unlikely to be deemed incorporated: Sugar v London, Midland & Scottish Railway
The nature of the clause:
Where the clause is unusual or onerous, a higher degree of notice will be required: Thornton v Shoe Lane Parking (Lord Denning) – clause attempting to exclude liability for personal injury - ‘it would need to be printed in red ink with a red hand pointing to it’
Interfoto v Stiletto Visual: an onerous term will NOT be incorporated into a contract merely by inclusion in a standard printed contract (here it was a general contractual term)
Onerous terms must therefore be specifically drawn to the attention of the other party, either by special note or as Denning suggested in Spurling v Bradshaw, by printing them in red ink
Note: signature will incorporate even onerous clauses except in extreme circumstances (duress): Chemical Transport Inc v Exnor
Incorporation by a course of dealing
Where a clause has been brought to the notice of the other party during previous dealings, it may be implied into the current transaction
Need to show that course of dealing has been consistent over a period of time: McCutcheon v David MacBrayne – here it was not consistent as ‘sometimes’ customers had to sign risk...
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A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from top students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of GDL notes available in the UK this year. This collection of GDL notes is fully updated for recent exams, also making them the most up-to-date GDL study materials ...
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