Incorporation

Incorporation

1. Pre-contractual statement

   • Puffery
     • Nothing can be awarded
       • Leonard v Pepsico
   • Represenations
     • Recission, NOT damages
       • Redgrave v Hurd
       • Oscar Chess ltd v Williams
   • Term
     • Express
       • Condition - root of the contract, party would not have signed without it
         • Associated newspapers v Bancks
         • Breach = termination, damages
       • Warranty - lesser significance
         • Bettini v Gye
         • Breach = damages
       • Collateral contract (checklist as in orange)
       • Exclusion Clause
       • How are they Incorporated?
         • By Signature
           • If you signed, It doesn't matter if you read the contract: L'Estrange v F Graucob
           • Toll v Alphapharm
           • If document is not contractual, doesn't count: Le Mans v Illiadis
         • By Reasonabe Notice
           • If document is not contractual, doesn't count: Causer v Browne
           • Must be proven if no signed document
           • Must be given prior to formation of contract
             • Olley v Marlborough Court
             • Alemeddine
             • Thornton v Shoe Lane Parking
     • Implied
       • By common law (courts)
         • No contradiction with express terms
         • Clearly expressed
         • Necessary
           • The moorcock
         • Reasonable
         • Obvious
           • Codelfa v SRA
       • By statute
       • By custom
     • Collateral Contract
       • To rebut PER and establish CC courts consider 1) If the statement was inconsistent with main contract. 2) Was the statement promissory? 3) Has the promisee provided consideration (usually by entering into contract)
         • Statements of Opinion are not promissory: Ross v Allis Chalmers
         • VDE v Chappel
         • Cannot be Inconsistent: Hoyts v Spencer
   • Term or representation?
     • Used if not all contract in writing1) How much time has passed? 2) How important is it for the whole contract (how much was it relied on?) 3)Why wasn't it written down if it was so important? 4)What is the relative knowledge of the parties?
       • Superior Knowledge: Dick Bentley v Harold Smith
       • Non - specific statements will not be considered terms: Crown v Cosmo
       • Ross v Allis Chalmers

2. Online Contract

   • Click Wrap: Must Click Accept when prompted with T&C
     • Meyer v Kalanick
   • Browse Wrap: must be easy to find
     • Specht v Netscape Communications