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11 Cards in this Set

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L’Estrange v F Graucob Ltd (1934) Signagewithin legal document with ICLR represents assent to terms2 KB 394 (DivisionalCourt, UK)

§ When a document containingcontractual terms is signed, then, in the absence of fraud, the party signingit is bound, and it is wholly immaterial whether he has read the document ornot. 



“[T]o signa document known and intended to affect legal relations is an act which itselfordinarily conveys a representation to areasonable reader of the document. The representation is that the person whosigns either has read and approved the contents of the document or is willingto take the chance of being bound by those contents ... whatever they mightbe.”

Toll v Alphapharm (2004) HCA· Determined objectively: reasonable person’s test· Principles of objectivity determines the rights and liabilitiesof a party to a contract

Itis not the subjective beliefs orunderstandings of the parties about their rights and liabilities that govern their contractual relations.What matters is what each party by words and conduct would have led a reasonable person in the position of theother party to believe. References to the common intention of the partiesto a contract are to be understood as referring to what a reasonable person would understand by the language in whichthe parties have expressed their agreement.

Curtis vChemical Cleaning and Dyeing Co (1951) If party has made misrepresentation they aredisentitled to rely on the exemption 1 KB 805 (Court of Appeal, UK)

o Whenthe signature to a condition, purporting to exempt a person from his common-lawliabilities, is obtained by an innocent misrepresentation the party who has made that misrepresentation is disentitled to rely onthe exemption. 


Oceanic SunLine Special Shipping Co v Fay Must give reasonable notice for conditions to beaccepted or rejected (1988) 165 CLR 197 (High Court of Australia)

There was lack of opportunity for passenger to read the conditions, before boarding the vessel, and then to elect whether to accept them. And the election could only be made after travelling to Greece. 
 The better analysis of the transaction: 
·


Thecontract was made in Sydney when passenger paid the fare and travel agentissued the exchange order. The payment of the fare effectively gave thepassenger an option to acquire the ticket in Athens in exchange for theexchange order. · Oceanicwas bound to issue the ticket in exchange for the exchange order in Athens, andtake the passenger on the cruise on terms already agreed (not on terms that hadyet to be agreed on). · At this point, it was too late after the original contract was made to add conditions which were not incorporatedin it.

Parker vSouth Eastern Railway Co Not bound by conditions of ticket if didn’t know therewas writing on ticket(1877) 2 CPD 416 (Court of Appeal, UK)

The personreceiving the ticket is not bound by the conditions on the ticket if he did notsee or know that there was any writing on the ticket. The person receiving the ticket is bound by the conditions on the ticket if he knew there was writingand believed that the writing contained conditions [irrespective of whetherhe has read them]; or: if he did not actually know the writing containedconditions, but the circumstances of the delivery of the ticket were such thathe could see there was writing on it, he is taken to have been given reasonablenotice of the conditions. But where:
the delivered/displayed terms are not in a documentreasonably thought to be “contractual” in nature,
 then the party seeking toincorporate them into the contract must take reasonable steps to bring them tothe notice of the other party.

Causer vBrowne Must alert a ticket is a statement of contractualconditions (not mere receipt)(1952) VLR 1 (Supreme Court, Victoria)

Onus was on the shop to prove customer was aware, or ought to be treated as being aware, that the docket was not merely a voucher or receipt and that it contained special contractual conditions. 
§ Theshop failed to discharge this onus. Accordingly, the exemption clause wasineffective.

Thornton vShoe Lane Parking Ltd Company must do what is reasonably sufficient to givenotice of terms(1971) 2 QB 163 (Court of Appeal, UK)

· Offer = owner of machine holding itout as being ready to take money. · Acceptance = customer puts moneyinto the coin slot. · Terms of the offer are contained inthe notice placed on or near the machine. Customer is bound by those terms aslong as they are sufficiently brought to his notice before-hand. · Customeris not bound by the terms printed on the ticket if they differ from the notice,because the ticket comes too late – the contract has already been made. Theticket is merely a receipt or voucher. But assuming an automatic machine is a booking clerkin disguise (so the old ticket cases apply), customer is bound by exemptingcondition if: · he knows the ticket is subject toit; or
 the car park company did whatwas reasonably sufficient to give him notice of it (which was not donehere). i.e. this is why there are posters everywhere in carparks now

InterfotoPicture Library Ltd v Stiletto Visual Programmes Ltd Onerous conditions must be informed (not justreasonable steps, special steps)(1989) QB 433 (Court of Appeal, UK)

o if one condition in a set of printedconditions is particularly onerous or unusual then the party seeking to enforceit must show that that particular condition was fairly brought to the attentionof the other party. · Inthis case condition 2 was a very onerous – the fee was exorbitant. Nothing wasdone by Interfoto to bring it to Stiletto’s attention.

BalticShipping Co v Dillon (The Mikhail Lermontov) Whether the conditions on ticket incorporated in contract;must give notice of unusual conditions.(1991) 22 NSWLR (Court of Appeal, NSW)

In Daly v General Steam Navigation Co (“The Dragon”), Brandon J held that: 
 the contract of carriage was concluded at the time the booking was made and confirmed; if the ship owner then issues a ticket (which contains additional printed conditions), it is not possible to add these to the terms of the contract without the agreement of the passenger - they are contractually ineffective. But in this case the booking form makes it obvious that it was not the contract of carriage because it said the contract would arise later But at this stage, unless Mrs Dillon took active steps of her own, she still had no knowledge of the ticket terms. 
 The shipping company has a responsibility to bring unusual conditions to the notice of passengers before they can be bound by them. 
 There were unusual conditions on this ticket, aside from the liability clause. 
 Dillon was entitled in law to take the view she would be issued with a ticket which would contain no unusual provisions of which she was not on notice. The limitation of liability conditions were such unusual provisions. The shipping company took no adequate steps to give her notice of these.

NSW Lotteries Corporation vKuzmanovski [2011] Full Federal Court of Australia

· Wherethe terms of contract are heavily regulated by legislation, it may be enoughfor the parties seeking to impose the terms to state that the contract betweenthe parties is governed by the relevant statute

Saleh v Romanous [2010]

· Partycan argue estoppel to circumvent PER, even in the face of an antire agreementclause· However,there are conflicting authorities on this point


· Collateralcontract did not work as it was inconsistent with main contract (said thatpurchaser was unconditionally obliged to complete the contract at a certaindate)· Estoppelhowever worked· PERdid not apply due to estoppel