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Incorporation Of Derogating Terms Notes

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Reduce a party's obligations by exclusion/limitation etc.
Incorporation by Signature:
o L'Estrange v Graucob [1934] - sales agreement for vending machine excluded any terms not written into contract. Held that regardless of whether plantiff had read contract, her signature was binding.
o Canadian limitation on L'Estrange Principle in Tilden v
Clendinning Rent-A-Car (1978) - did not apply where it was or should have been clear that the customer had not read the contract and was not aware of the burdens it imposed.
Exceptions to incorporation by signature:
o Where the document has no contractual effect:
 Grogan v Robin Meredith Plant Hire [1996] -
Meredith had an oral contract for hire of machinery.
Sought to rely on time sheet signed by company which mentioned hire terms. Held this was not a contractually effective document.
o Where there has been a misrepresentations:
 Curtis v Chemical Cleaning [1951] - dry cleaner stated that they were exempting themselves from damage caused to beads or sequins on wedding dress.
In fact, contract excluded all liability for any damage. P
received stained dress and sued for damages.
 CA: Denning LJ held that the defendants were not entitled to rely on the clause. It operated only to the extent which they had represented.
 Unorthodox - clause ought to be effective or not.
The idea that it is effective but only to the represented extent resembles an estoppel.
Incorporation by Reasonable Notice

Notice must be given before or at the time the contract is formed. If it is given only after the moment of contracting,
then it is invalid.
 Olley v Marlborough Court Hotel [1949] - valuables were stolen from plaintiffs' room. Notice exempting hotel for loss of valuables in rooms. Held that as contract was signed at desk, signs in room were too late.
 Thornton v Shoe Lane Parking Ltd [1971] - parking machine printed exemption clauses on the back of tickets. Thornton did not receive the ticket until after the contract had been concluded.
o Must been contained in a document that could reasonably be expected to contain contractual terms.
 Grogan above.
 Chapelton v Barry UDC [1940] - receipt for deck chair hire had exemption clause on the back. Plaintiff injured on chair. Held that as offer/acceptance occurred

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