incorporation

• where there is a written contract

  courts presumed everything the parties wanted to include as terms are written in the contract
• What are the two ways terms can be implied by common law?

  Through business efficacy/ the officious bystander test and custom or prior dealing
• court will imply a term if it makes the contract work on a business-like basis, they will assess:

  • is the term necessary to make the contract effective? if they thought about it would the suggested term be in the contract?
• business efficacy: the term must be necessary to give the contract a business effect, will only imply a term of the contract doesn’t make business sense without it
• Re Moorcock:

  business efficacy test
• officious bystander test:

  if a third party was present at the time the contract was made and suggested the term would be implied, it would be obvious to both parties
• Shirlaw v Southern foundries:

  officious bystander test
• geniunely implied terms are what a reasonable person would have understood to be the intention of both parties in the context of the contract
• fairness and acceptability to the parties is insufficient on their own
• terms implied by custom (Hutton v Warren)
• Terms implied by prior dealings (Hitlas and co v Arcos)
• Terms implied by statute- Consumer Rights Act 2015:

  s9 right of satisfactory quality (good description, price, other relevant circumstance)

  s10 right of fitness for purpose

  s11 right relating to description
• remedies under Consumer Rights Act 2015:

  short-term right to reject (s20): full refund available within 30 days
• statutes that imply terms:

  Sale of Goods Act 1979 and Supply of Goods and Services Act 1982 (business-to-business)

  Consumer Rights Act 2015 (business-to-consumer)
• express terms:

  can be incorporated through written notices, tickets or signed documents
• terms incorporated through written notices (Thornton v Shoe Lane Parking)
• terms implied through tickets (Parker v SE Railways)
• terms implied through signed documents (L’Estrange v Graucob)
• What must terms be at the time of contracting?

  Prominent, clear, and available (thornton v show lane parking)
• What must be made clear about harsh or unusual terms?

  They must be made clear (s.68 consumer rights act 2015)
• What are the rules for incorporation of pre-contractual statements?

  • Pre-contractual statements can be incorporated as terms if they are clear and agreed upon.
  • Oral statements can be incorporated if they are significant to the contract.
  • Written statements must be included in the final contract.
• What can an oral statement do in a contract?

  It can be incorporated if significant
• What must written statements do in a contract?

  They must be included in the final contract
• What is the likelihood of a statement being incorporated as a term?

  • A statement is more likely to be incorporated if it is made by someone with authority.
  • The timing of the statement can affect its incorporation.
  • The importance of the statement to the contract is crucial.
• What is the significance of the timing of a statement in a contract?

  It can affect its incorporation
• What is the importance of a statement to a contract?

  It is crucial for incorporation
• What is the relationship between oral statements and written contracts?

  • Oral statements can be binding if they are significant.
  • Written contracts must reflect the agreed terms.
  • Oral statements may be challenged if contradicted by written terms.
• What can happen if an oral statement contradicts written terms?

  It may be challenged
• What is the likelihood of a statement being incorporated if made by someone with authority?

  It is more likely to be incorporated
• What is the significance of the Consumer Rights Act 2015 in contracts?

  • It provides rules for incorporation of terms.
  • It ensures consumer protection in contracts.
  • It outlines the rights of consumers regarding unfair terms.
• What does the Consumer Rights Act 2015 ensure?

  Consumer protection in contracts
• What does the Consumer Rights Act 2015 outline?

  The rights of consumers regarding unfair terms
• What is the relationship between terms and the contract?

  • Terms must be clear and agreed upon.
  • Terms can be challenged if not properly incorporated.
  • Terms must reflect the intentions of the parties involved.
• What happens if terms are not properly incorporated?

  They can be challenged
• What must terms reflect in a contract?

  The intentions of the parties involved
• What is the importance of clarity in contract terms?

  • Clarity ensures mutual understanding.
  • It prevents disputes over interpretation.
  • It establishes enforceability of the contract.
• Why is mutual understanding important in contracts?

  It prevents disputes over interpretation
• What does clarity in contract terms establish?

  Enforceability of the contract
• What are the consequences of unclear contract terms?

  • Potential disputes between parties.
  • Difficulty in enforcing the contract.
  • Increased likelihood of legal challenges.
• What can unclear terms lead to in a contract?

  Potential disputes between parties