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THE RULE IN L'ESTRANGE v GRAUCOB
THE INCORPORATION OF TERMS
The Unfair Contract Terms Act 1977 (inrelation to exemption clauses in contracts andalso in the tort of negligence)
The Unfair Terms in Consumer ContractsRegulations 1999 (consumer contracts generally) (Now the Consumer Rights Act2014 ss62-70) (on Unfair Terms)
THE EFFECT OF SIGNATURE ON A DOCUMENT
Held as the buyer had signed the writtencontract, and had not been induced to do so by any misrepresentation, she wasbound by the terms of the contract, and it was wholly immaterial that she hadnot read it and did not know its contents; the action failed and the sellerswere entitled to judgment.
(ii) Exemptionsand limitations of liability. The law isnow a mixture of common law, and the Unfair Contract Terms Act 1977
(iii) Theclassification of terms; conditions and warranties. There is now a third Category ‘Intermediate Terms’(since 1962)
(iv) Theuse of implied terms (now Sale of Goods Act 1979, then 1893 Act)
(v) Remediesfor breach of contract, rescission and damages
(vi) Therelationship between written and oral terms in the same contract
vii) ‘Objective’and ‘subjective’ views of intention (See Applebey pp.23-27)
(viii) Isthe rationale for the rule estoppel?
(ix) Theeffect of signature on a contract
(x) Incorporationof terms, the ‘reasonable steps’ rule.
(xi) Subsequentdevelopment of Contract law. How would case be dealt with now? The Unfair Contract Terms Act 1977s 6 and Schedule 2, paragraph ( c)
(xii) Conceptsin Contract Law
(i) Inequality ofbargaining power (ii)Fairness (iii)Freedom ofContract
INDEMNITY CLAUSES - SIGNATURE - ANOTHER LANGUAGE - THE EFFECT OF SIGNATURE ON A DOCUMENT
(ii)Nonest factum (means that the signature on the contract was signed by mistake, without knowledge of its meaning, but was not done so negligently).
(iii)Misrepresentation or fraud
(iv)Document signed is only a memorandum oforal agreement not intended to be the full contract; Document signed must be contractual; Objective approach to construction
exceptions to the rule - non est factum
exceptions to the rule - misrepresentation or fraud
If a person wishes to exempt himself from a liabilitywhich the common law imposes on him, he can only do it by an expressstipulation brought home to the party affected and assented to by him as partof the contract. If the party affected signs a written document, knowing it tobe a contract which governs the relations between both parties, his signatureis irrefragable evidence of his assent to the whole contract, including theexempting clauses, unless the signature is shown to be obtained by fraud ormisrepresentation. Any behaviour by words or conduct is sufficient to be amisrepresentation if it is such as to mislead the other party about theexistence or extent of the exemption.
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