Any terms must be successfully incorporated in to a contract in order to be binding in 3 ways:
Signature
Reasonable notice
brought to attention at the time the contract was made
Previous dealings
Incorporated as a result of previous dealings of the parties
1)) Signature
If a party has signed a document, terms will be binding on signatory whether they read it or not - L'Estrange v Graucob
Exemptions:
signed due to fraud or misrepresentation - Curtis v Chemical Cleaning and Dyeing Company
2)) Reasonable notice
Terms not in a signed contract *can* be incorporated through reasonable notice
Party relying on the term must take reasonable steps to ensure the other party has notice
Objective test - based on reasonable man would have noticed
Courts consider:
Where statement is written
Timing of the notice - e.g. before the contract is made
Each case rests on its own facts
(2)) Reasonable notice) Red Hand Rule
Spurling v Bradshaw:
'Some clauses which have seen [to be so severe, it] would need to be printed in red on he face of the document with a red hand pointing to it, before the notice could be held to be sufficient'
Denning LJ
confirmed in Interfoto Picture Library v Stiletto
(2))Reasonable notice) Timing
Term must be brought to the attention of the other party before the contract is concluded
Olley v Marlborough Court Hotel
Thornton v Shoe Lane Parking
3)) Incorporated by previous dealings
An exemption clause can be incorporated into based on regular and consistent course of dealings
