Unfair Contract Terms Courts begin with common law rules and then consider legislation. Discuss whether contractor would have been liable for without the exclusion clause and later consider the impact of the clause itself. History Courts have no power to strike down term. Common law tools: - Incorporation. - Construction/interpretation. Now UCTA 1977 - b2b. Consumer Rights Act 2015 - b2c. Approaching exemption clauses and notices 1. Cause of action 2. Question of incorporation 3. Question of construction 4. Nature of the contract Incorporation Ways in which a term forms part of the contract: 1. By way of signature; 2. By way of reasonable notice; 3. By way of course of dealings. By way of signature If signed, incorporated into contract. L'Estrange v Graucob [1934] - C did not read sales agreement before signing it. Contained exclusion clause which excluded all liability. Product did not function, but she had signed the contract, so the clause applied. - Scrutton LJ: Since the contract was not induced by fraud or misrepresentation, it did not matter whether she had read the contract or not.
Curtis v Chemical Cleaning and Dyeing Co [1951] C took dress to D for cleaning. Signed a document stating that the Ds would not be liable for any damage to the dress. D's employee said that they would only not be liable for sequins and beads. Not allowed to rely on contract due to the misrepresentation. - Essentially exception to L'Estrange. By way of reasonable notice Party who wants term included in contract has to be notified by it and has to take reasonable steps so that the other party is aware of it. Parker v South Eastern Railway (1877) Bag worth £24 deposited at a cloakroom. Ticket said, "see back", where exclusion clause stated that it will not be responsible for anything worth over £10. Bag was lost. In CA, new trial was issued. Not whether or not he read the clause. But whether reasonable notice had been given. Consider: - Nature of the document. - Timing of the notice. - What the clause itself says - unusual or onerous? Nature of the document Chapleton v Barry UDC [1940] Facts: C bought deckchair and given ticket which he thought was only the receipt of purchase. There was nothing on the sign, which contained instructions in buying deckchair, which stated that there were any terms on the tickets. Exclusion clause contained in ticket and chair breaks. Held: Not incorporated since it was not the type of document that you would expect the terms to be in. Was a non-contractual document. Intended to be receipt rather than contractual document. Reference to another document? Possible to refer to another document but it has to be reasonable. Thompson v London Midland and Scottish Railway [1930] Facts: Ticket purchased by a woman who could not read. Ticket said see back which referred to another document contained in company's timetable. Had to purchase timetable to see the terms and conditions. C fell off train