English Contract Law - Construction - Incorporation of Terms

Incorporation of Terms

The promises offered by one person to another are the terms of a contract, but not every representation before an acceptance will always count as a term. The basic rule of construction is that a representation is a term if it looked like it was "intended" to be from the viewpoint of a reasonable person. It matters how much importance is attached to the term by the parties themselves, but also as a way to protect parties of lesser means, the courts added that someone who is in a more knowledgeable position will be more likely to taken to have made a promise, rather than a mere representation. So in Oscar Chess Ltd v Williams the Court of Appeal held that when Mr Williams sold a Morris car to a second hand dealer and wrongly (but in good faith, relying on a forged log-book) said it was a 1948 model when it was really from 1937, the car dealer could not later claim breach of contract because they were in a better position to know. This matters because while one party may have a right to escape from a bargain, or rescind the contract, if they were induced by misrepresentations to enter a contract and can claim damages for any losses, if the statement is a term and is broken, they will be able to claim lost profits. So broken terms lead to damages to protect all a claimant's expectations, to put them in the position as if the contract were actually performed.

When a contract is written down, there is a basic presumption that the written document will contain all the terms of an agreement, and when people sign documents every term referred to in the document binds them (unless it is found to be merely an administrative paper, or under the very limited defence of non est factum). This matters most in commercial dealings, where businesses place a high value on certainty. If a statement is a term, and the contracting party has not signed a document, then terms may be incorporated by reference to other sources, or through a course of dealing. The basic rule, set out in Parker v South Eastern Railway Company, is that reasonable notice of a term is required to bind someone. Here Mr Parker left his coat in the Charing Cross railway station cloakroom and was given a ticket that on the back said liability for loss was limited to £10. The Court of Appeal sent this back to trial for a jury (as existed at the time) to determine. The modern approach is to add that if a term is particularly onerous, greater notice with greater clarity ought to be given. Denning LJ in J Spurling Ltd v Bradshaw famously remarked that "Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient." In Thornton v Shoe Lane Parking Ltd a car park ticket referring to a notice inside the car park was insufficient to exclude the parking lot's liability for personal injury of customers on its premises. In Interfoto Picture Library Ltd v Stiletto Ltd Bingham LJ held that a notice inside a jiffy bag of photographic transparencies about a fee for late return of the transparencies (which would have totalled £3,783.50 for 47 transparencies after only a month) was too onerous a term to be incorporated without clear notice. By contrast in O’Brien v MGN Ltd Hale LJ held that the failure of the Daily Mirror to say in every newspaper that if there were too many winners in its free draw for £50,000 that there would be another draw was not so onerous on the disappointed "winners" as to prevent incorporation of the term. It can also be that a regular and consistent course of dealings between two parties lead the terms from previous dealings to be incorporated into future ones. In Hollier v Rambler Motors Ltd the Court of Appeal held that Mr Hollier, whose car was burnt in a fire caused by a careless employee at Rambler Motors' garage, was not bound by a clause excluding liability for "damage caused by fire" on the back of an invoice which he had seen three or four times in visits over the last five years. This was not regular or consistent enough. But in British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd Lord Denning MR held that a company hiring a crane was bound by a term making them pay for expenses of recovering the crane when it sunk into marshland, after only one prior dealing. Of particular importance was the equal bargaining power of the parties.