Bit confused about exclusion clauses!

I know it can be incorperated into a contract through 1) signature 2) notice or 3) course of dealings.

Marlbrough Court Hotel said that for notice, it had to be at the point where the contract was formed (?) so does that mean that a sign saying "we except no liability for loss or damage to property" cannot be incorperated into a contract through course of dealings even if the claimant had seen the sign hundreds of times? In this case the claimant had a season ticket so presumably the contract was formed when she initially took that out. She may have seen the sign many times but not at the point when she took out the contract.

Is course of dealing a non-starter in that instance or am I mis-understanding??

Reply 1

thisisyesterday

The issue was that the notice was hidden away. Had the sign been prominent, the case would have been decided differently. You can't proove that she saw the notice, irrespective of how many times she stayed in the hotel, because the notice was elusive. Course of dealing assumes that both parties were aware of the terms and have abided by them on a regular and consistent basis. She could not be expected to be aware of the terms because at no point have they been made clear to her.

I'm not sure, but I think you might be complicating the issue a little too much.

Reply 2

soccer.marie

marcjacob

Does your question mean that if during numerous transactions and for each and every transaction, the sign came in late after the formation of the contract, can course of dealing imply the sign into the contract?

I think it is possible. In the case of Henry Kendall v William Lillico. After each transaction of the sale of goods under oral contract, sellers would send a sold note to buyers containing an exemption clause [altogether 100 notes]. The clause is held to have been successfully incorporated into the contract. Buyers’ conduct would convince any ordinary seller that he consent to the clauses.

Reply 3

thisisyesterday

soccer.marie

But surely there's a difference here in that the note was sent to the buyer (therefore giving them sufficient notice), whereas in the hotel case the point was that the exclusion clause was elusive and not in a prominent enough place to be said to have been brought to the woman's attention.

Reply 4

marcjacob

This isn't multiple contracts (I don't think) as she has a season ticket to her local swimming baths so there is presumably one contract? The signs are one on a turnstile (that she doesn't use) excluding loss and damage to property, and one on a changing cubicle excluding personal injury.

Reply 5

thisisyesterday

marcjacob

I misunderstood your first post completely! This clears it up a little.

I'd look at it like this. In Olley it was held that there has to be actual knowledge of the clause at the time of the formation of the contract. In your scenario, she was not given notice.

In Spurling Ltd v Bradshaw it was held that if the parties have dealt on the same terms in the past, it may be possible to imply knowledge of the clause from past dealings. This is essentially arguing that the clause has been incorporated into the contract as a term and can therefore be relied upon. The court only accepted the validity of the exclusion because the parties had dealt on the same terms in the past. The defendant was bound because he was aware of it from past dealings and the clause had been consistently used in all prior dealings between the parties.

In McCutcheon v MacBrayne it was held that the past dealings had to be regular and consistent.

Using these cases, I'm inclined to think that there is no course of dealings in your scenario. In Olley, the woman was a long-staying resident of the hotel, which means that she would have had the opportunity to have seen the notice at various times (much like in your scenario). The point is is that irrespective of the fact that she might have seen it at some point, it should have been brought to her attention at the time of forming the contract.

The other cases state that there has to be regular and consistent dealing, which implies multiple contracts. In your case there is only one contract which just so happens to cover the season ticket holder for a period of time. This is comparable to Olley where she was a long staying resident.

Bit confused about exclusion clauses!

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