#9056 - Incorporation Of Unsigned And Signed Documents - Contracts Law

TOPIC 2: INCORPORATION OF UNSIGNED/SIGNED DOCUMENTS

Exclusion clause: can exclude particular types of liability, all liability, or impose a cap on liability. Ex. insurance losses, car rental contracts, release by bungee jumpers, dry cleaning receipt, ticket master). Some are incorporated and others are not. Exclusion clauses put consumers in a weaker position, but they are tools to maintain economic viability.

WITH EXCLUSION CLAUSES:

1. Ask whether clause has been incorporated into K (notice or signature must be provided)

2. If reasonable notice is not at issue, does exclusion clause extend to loss in question? (interpretive)

With unsigned documents, the general rule is that parties must give reasonable notice of an unsigned term in order to ensure the signee is bound by it (Parker v South Eastern Ry Co). Parker concerned a person who had left luggage with a railway room and was given a ticket with a limitation of liability clause on the back. The customer did not read the back of the ticket, his luggage was lost, and he claimed damages successfully due to lack of reasonable notice.

A waiver is a form of exclusion clause and can be unwritten or signed. They are subject to the contra pro forentum rule which reinforces language of the waiver and scope of protection provided. General Rule = waiver is not enforceable unless reasonable notice has been provided by the party relying on it at or before time of K formation. Unless such notice is given, the waiver does not become a part of the offer in the contract. The test for determining whether notice was given is objective and asks whether a reasonable person would know that the waiver was intended to be a term of the contract. This requires a close analysis of the facts concerning the size, location, font and position of the waiver. It may be argued that consideration is absent in waivers or that past consideration is no consideration (Consider signing waiver at bottom of ski hill then going up). Like an exemption or exclusion clause, waivers of liability must be construed against party protected by the clause. Judges will look to the meaning of the language used in the waiver and the scope of protection affected by it. Waivers are weak if they do not cover the negligent conduct at issue.

There are very limited situations in which someone is not bound by what they have signed: 1) non est factum (I didn’t know what I was signing because I was supposed to be signing something totally different), 2) misrepresentation 3) onerous provision.

SIGNED DOCUMENTS

The general rule with signed documents is that one’s signature constitutes being bound by the terms including the exclusion clauses, whether you’ve read the contract or not (L’Estrange).