Overview
• Express terms can be oral or in writing
• Written terms o Consider what is written
• Location and notice of written terms
• Oral terms o Consider what they parties have said
• Puffery
• Representation
• Term
o Parol evi rule concerning written contracts
• Presumes parties intended the written doc form entire
agreement
• Court won't allow extrinsic evi unless exception o
Collateral contracts
Written terms
• Usually contracts are written and signed by contracting parties
• Can be incorporated into contract via o Signature o Notice
• Unsigned doc
▪ E. g. tickets issued as part of contract of carriage
• Signs
▪ Terms can be contained in written notices displayed in prominent
places
• E.g. agreements formed from notices appearing on board at entrance to car park
• Website o Reference
• Parties purport to contract on basis of terms not expressly set out in doc or
discussed orally but set out in another doc referred to by parties
Incorporation by signature
Signature Rule/General rule
• Promotes certainty and completeness
• Parties will be bound by contracts they have signed, regardless of whether they've read
the terms or not
o L'Estrange v Graucob [1934] 2 KB 394
• Mrs L'Estrange signed doc including term stating that other conditions not stated in
contract is excluded
• English court o Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52
• Aus HC approved approach and applied it
• Scrutton LJ observed o When contract is signed, party signing it is bound o
Wholly immaterial whether they've read the doc or not
• Person who doesn't read terms assumes risk o Won't be bound in case of fraud or
misrepresentation
• Why it exists o Professor Atiyah in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004]
HC: signature is widely recognised even by general public as being formal device. Value
would be reduced if not treated as conclusive ground of liability at least in all ordinary
circumstances
Exceptions to signature rule
• Parties won't be bound even where there is a signature if o
Content or effect of doc was misrepresented o Doc signed is not
contractual in nature o Non est factum
, • Defence
Misrepresentation
• Misrepresentation of content and effect of doc o Curtis v Chemical
Cleaning and Dyeing Co [1951] 1 KB 80
• Drycleaners innocently misled Mrs Curtis regarding scope of exclusion clause
• Statement of shop assistance and failure to draw attention to actual scope
of exclusion clause amounted to misrepresentation
• Cleaners could only rely on exclusion clause in relation to damage to beads
and sequins, not for other damages (including stain which is what they were
being sued for)
• Lord Denning emphasised Mrs Curtis signed doc labelled 'receipt', NOT doc
contractual in nature
▪ If one wishes to exempt themselves from liability, can only be done
so by express stipulation brought home by party affected and
assented to him as part of contract
▪ If party affected signs contractual document, signature is evi assent
to whole contract unless obtained from fraud or misrep
▪ Any behaviour by words or conduct is sufficient to be misrep is it's
to mislead party and conveys a false impression
• Created knowingly = fraudulent misrep, innocently = innocent misrep Doc
signed not contractual in nature
• Party signing doc believing it's smth other than contractual doc may not be
bound by terms o LJ Denning referred to Curtis and suggested in
similar circumstances it’s reasonable to regard doc (which contents haven't
been discussed) as a voucher for customer to produce when collecting
goods and NOT to exempt party from common liability for negligence
• If party finalised agreement and some time later sign written doc which
contains terms not previously agreed, signer may not be bound by terms
• Consider 2 scenarios o Oral agreement is reached and performance occurs
before signing
• Court had to consider if exclusion clause was incorporated by previous
course of dealings
▪ No previous consistent course of dealings = appropriate that person
shouldn't be bound by clause in doc they signed or after agreement
is concluded and bargained-for-service provided
▪ Unlikely to be regarded as contractual doc
▪ Doc signed on delivery = regarded as no more than delivery docket
• Dj Hill v Walter H Wright [1971] VR 749 o Oral agreement is reached
but performance has not occurred before signing
• Argument in L'Estrange v F should apply coz signing preceded or is
contemporaneous w/ performance OR
• Contract is concluded at stage of oral agreement
▪ Signing doc will incorporate additional or diff terms if parties intend
to vary original agreement
▪ This rationale adopted by SC of SA
• Warming's Used Cars Ltd v Trucker [1956] SASR 249
• Case is rare
• Parties intend signed doc to form basis of contractual arrangements usually
• Express terms can be oral or in writing
• Written terms o Consider what is written
• Location and notice of written terms
• Oral terms o Consider what they parties have said
• Puffery
• Representation
• Term
o Parol evi rule concerning written contracts
• Presumes parties intended the written doc form entire
agreement
• Court won't allow extrinsic evi unless exception o
Collateral contracts
Written terms
• Usually contracts are written and signed by contracting parties
• Can be incorporated into contract via o Signature o Notice
• Unsigned doc
▪ E. g. tickets issued as part of contract of carriage
• Signs
▪ Terms can be contained in written notices displayed in prominent
places
• E.g. agreements formed from notices appearing on board at entrance to car park
• Website o Reference
• Parties purport to contract on basis of terms not expressly set out in doc or
discussed orally but set out in another doc referred to by parties
Incorporation by signature
Signature Rule/General rule
• Promotes certainty and completeness
• Parties will be bound by contracts they have signed, regardless of whether they've read
the terms or not
o L'Estrange v Graucob [1934] 2 KB 394
• Mrs L'Estrange signed doc including term stating that other conditions not stated in
contract is excluded
• English court o Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52
• Aus HC approved approach and applied it
• Scrutton LJ observed o When contract is signed, party signing it is bound o
Wholly immaterial whether they've read the doc or not
• Person who doesn't read terms assumes risk o Won't be bound in case of fraud or
misrepresentation
• Why it exists o Professor Atiyah in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004]
HC: signature is widely recognised even by general public as being formal device. Value
would be reduced if not treated as conclusive ground of liability at least in all ordinary
circumstances
Exceptions to signature rule
• Parties won't be bound even where there is a signature if o
Content or effect of doc was misrepresented o Doc signed is not
contractual in nature o Non est factum
, • Defence
Misrepresentation
• Misrepresentation of content and effect of doc o Curtis v Chemical
Cleaning and Dyeing Co [1951] 1 KB 80
• Drycleaners innocently misled Mrs Curtis regarding scope of exclusion clause
• Statement of shop assistance and failure to draw attention to actual scope
of exclusion clause amounted to misrepresentation
• Cleaners could only rely on exclusion clause in relation to damage to beads
and sequins, not for other damages (including stain which is what they were
being sued for)
• Lord Denning emphasised Mrs Curtis signed doc labelled 'receipt', NOT doc
contractual in nature
▪ If one wishes to exempt themselves from liability, can only be done
so by express stipulation brought home by party affected and
assented to him as part of contract
▪ If party affected signs contractual document, signature is evi assent
to whole contract unless obtained from fraud or misrep
▪ Any behaviour by words or conduct is sufficient to be misrep is it's
to mislead party and conveys a false impression
• Created knowingly = fraudulent misrep, innocently = innocent misrep Doc
signed not contractual in nature
• Party signing doc believing it's smth other than contractual doc may not be
bound by terms o LJ Denning referred to Curtis and suggested in
similar circumstances it’s reasonable to regard doc (which contents haven't
been discussed) as a voucher for customer to produce when collecting
goods and NOT to exempt party from common liability for negligence
• If party finalised agreement and some time later sign written doc which
contains terms not previously agreed, signer may not be bound by terms
• Consider 2 scenarios o Oral agreement is reached and performance occurs
before signing
• Court had to consider if exclusion clause was incorporated by previous
course of dealings
▪ No previous consistent course of dealings = appropriate that person
shouldn't be bound by clause in doc they signed or after agreement
is concluded and bargained-for-service provided
▪ Unlikely to be regarded as contractual doc
▪ Doc signed on delivery = regarded as no more than delivery docket
• Dj Hill v Walter H Wright [1971] VR 749 o Oral agreement is reached
but performance has not occurred before signing
• Argument in L'Estrange v F should apply coz signing preceded or is
contemporaneous w/ performance OR
• Contract is concluded at stage of oral agreement
▪ Signing doc will incorporate additional or diff terms if parties intend
to vary original agreement
▪ This rationale adopted by SC of SA
• Warming's Used Cars Ltd v Trucker [1956] SASR 249
• Case is rare
• Parties intend signed doc to form basis of contractual arrangements usually
