1. Terms that derogate- exclusions
   1. Signature
      1. L'Estrange
         1. Pl had not read document, exclusion still incorporated, signature was binding
      2. Tilden (distinguish)- Canada
         1. Clause in small font on back of form, apparent to employee that D had not read it, signature rule did not apply
      3. Signature not binding when result of misrepresentation- Curtis Cleaning
   2. Notice
      1. Importance of timing- notice must be given before or at time of contract formation
         1. Olley v Marborough- hotel, notice denying liability for stolen goods on hotel room door, not seen at time of contract formation, not incorporated
         2. Thornton v Shoe Lace Parking- as Pl went into car park, received a ticket which attempted to exclude liability for injury, but contract had been concluded before ticket given
      2. Document containing exclusion must be of a contractual nature
         1. Chapelton v Barry- deck chairs, ticket contained exclusionary words but was reasonably seen as a "mere receipt" and not a contractual document
         2. British Crane Hire (distinguish)- hire and transport charges agreed over phone, later Pl sent a printed form (containing exclusion clauses). clauses incorporated as Pl entitled to assume that contract was being made on normal conditions
      3. whether reasonable steps have been taken to make parties aware
         1. Parker v South Eastern Railway- exclusion clause on back of ticket limiting liability for lost luggage to £10, not sufficient steps taken to make people aware
            1. customer not bound if unaware of writing on the ticket? caution with this
            2. needs to be balanced with Railway's need to keep trains running on economically feasible terms
            3. arguably favourable to individual
         2. Thompson v London, Midland and Scottish Railway- back of ticket referred to conditions to be found in timetable, which had to be purchased separately. Exclusion for liability for injury
            1. Court held Pl had accepted the terms and was bound by them (although obviously reasonable steps not taken)
         3. Interfoto- onerous clause, delivery note stated £5 holding fee for each day not returned. Held not validly incorporated. Such an onerous clause requires more to be done to make parties aware.
         4. AEG- faulty goods, Pl claimed cost of returning fault goods was on buyers (condition in an order confirmation note)
            1. very onerous
            2. UCTA 1977 provided solution
            3. held not incorporated but differing reasoning from judges
            4. LJ HobHouse claimed that as it dealt with matters often the subject of contracts of sale (not unusual), probably not appropriate to hold it unincorporated. Distinguish Interfoto
   3. By course of dealing
      1. McCutcheon- D's ferry sank with Pl's car inside. Usually customer sign a risk note, but not on this occasion (and not reliably in the past) Held not incorporated- no consistency in course of dealings
2. Terms that supplement-warranties
   1. Terms or Representations?
      1. Intention of giving statement
         1. Heilbut, Symons v Buckleton- Pl bought shares in a company as a result of misrepresentation, not intended to be a warranty
         2. Subsidiary tests (guides to discover intention)
            1. Importance of statement
            2. Bannerman v White- negotiations would not have proceeded without indemnity, so held to be a term of the contract
            3. whether party is well-placed to give a guarantee
            4. Oscar Chess- false statement about age of car not. warranty, only representation.
            5. Dick Bentley- false statement as to mileage of car, held to be a term.
            6. Denning- distinguish cases- In Oscar Chess, Pl was merely repeating the information in the log book, he had no way of knowing it was wrong. Dick Bentley- Smith was a car dealer who should have known/could have found out the history of the car
            7. reference to fault inappropriate?
            8. assumption of responsibility
            9. Schawel v Reade- buyer of horse told there was no ned to examine it- term of contract
            10. Ecay v Godfrey- seller not prepared to take responsibility for condition of boat, statements as to its condition not terms of contract
            11. timing
            12. Inntrepeneur Pub- statement made just before/at time of contract more likely to be term. Also where the parties have drawn up a written contract, and made no reference in it to an earlier statement, there is a presumption that it is not intended to have contractual effect
3. Incorporation of Conflicting Terms
   1. Parol Evidence Rule- presumption that written contract is entire agreement. Jacobs v Batavia
      1. Easily rebutted
         1. Couchman v Hill- oral assurance cow was unserved overrode disclaimer in catalogue
         2. Collateral contracts- where there are conflicting terms, situation can sometimes be interpreted as 2 different contracts
            1. City and Westminster Properties- Tenant was told that if he entered into a new lease the landlord would not enforce the written terms of the lease. Assurance created a collateral contract
            2. J Evans- oral assurance that goods would be kept below deck (written contract gave discretion). assurance held to constitute collateral contract
            3. Esso
4. More onerous terms require clearer notice/more steps to be taken