LAWS 203 - 'Terms'

Front

What if a signee has not executed a document? How can terms in a contract be effective in such circumstances?

Back

Incorporating terms via notice, is one way that terms can be effective without having to be executed in a written document containing terms and conditions, by the signee.

Front

What are the two requirements for Incorporation by notice?

Back

That the incorporation be timely and reasonably sufficient.

Front

Discuss the first requirement using case law.

Back

'Timely' requires that the notification must be given prior to the formation of the contract. This is why, in the case of Olley, the court held that because the notification was untimely given in that the Olley's were made aware of it after offer and acceptance had occurred, the term excluding the hotels liability for stolen goods, was unsuccessfully integrated into the contract.

Front

What if a term is unreasonably unusual? How can such a term be incorporated? Why?

Back

In the case of Bradshaw, the court held that if you have a particularly unreasonable term, then special notice must begiven, in order to incorporate such a term.

Front

How can special notice be given for such a term?

Back

Denning LJ stated that 'special notice' requires that the party wishing to incorporate such a term, must take special steps to highlight it (such as coloring the terms in a red font, with an arrow pointing at it) in order to effectively bring the term to the attention of the other party.

Front

What is the idea behind click wrap and browser app?

Back

Incorporation of terms online is the main focus of the idea of click wrap and browser app.

Front

Explain the idea of Shrink Wrap.

Back

In order to incorporate terms in a timely and sufficiently prominent manner, companies often wrap their products in transparent shrink wrap, in order for customers to read the terms before offer and acceptance.

Front

What does 'Browser App' mean, and how is it different from 'Click Wrap'?

Back

Browser App refers to the idea that a website presents a link to the customer, which takes them to a page containing terms and conditions. This is different from 'Click Wrap' because the customer is not required to hit 'I agree' in order to accept the terms.

Front

What is the main issue that concerns browser app and how was it dealt with by the courts in the case of Nguyen?

Back

The main issue that concerns browser app is whether the link to the terms provided is sufficiently prominent, and in the case of Nguyen, the court held that the terms and conditions that were referred to by the link could not be incorporated into the contract, because the link itself was not sufficiently prominent.