Written Terms Incorporation by Signature (pp. 24) Incorporation by Notice (pp. 25) Incorporation by reference (pp. 26) Sign (pp ) Unsigned document (pp. 25) Website (pp. 26) Assumed to be bound regardless of awareness/understanding of terms L’Estrange v F Graucob Ltd Exceptions (pp. 24) Misrepresentation of effect of clause Curtis v Chemical Cleaning & Dyeing Co Document not believed contractual in nature Curtis v Chemical Cleaning & Dyeing Co Non Est Factum DJ Hill & Co v Walter H Wright Signature does not signify assent L’Estrange v F Graucob Ltd Terms can be incorporated by reference to another document Smith v New South Wales Switchgear Co Test: Reasonable Man inc. circumstances Pass: Term Incorporated Fail: Term not incorporated Reasonable steps taken by defendant to inform plaintiff: TEST OF FACT Yes: Incorp. No: Not incorp. Reasonable Man Parker v South Eastern Railway Co. Not contractual Reasonable Person (Onus on Defendant to prove) Parker v South Eastern Railway Co. No extra steps taken – NOT INCORP. Contractual Assumed to be bound by terms Mendelssohn v Normand Exception: Unusual terms for contract Test: Reasonable Man (Parker v South Eastern Railway Co. Reasonable Person (Onus on defendant to prove) Balmain New Ferry Company v Robertson Notice given before formation Olly v Marlborough Court Notice sufficient Notice insufficient Yes – Possible Incorporation No – No incorporation No incorporation Incorporation Traditional principles relevant Reasonable Person (Onus on defendant to prove) Theoretically Notice sufficient (IE Doc. inc. terms) Notice insufficient (IE: No doc. inc. terms) No incorporation Incorporation

Oral Terms

Implied Terms #1 – Presumed intention of parties Business efficacy Previous consistent course of dealings Whether the implication of term is necessary to give business efficacy to the transaction Five Tier Test BP Refinery (Westernport) v Shire of Hastings reasonable and equitable Necessary to give business efficacy to contract Interpreted strictly Must be so obvious that it goes without saying Must be capable of clear expression Must not contradict any express term in contract Parol evidence rule won’t apply Mason J More formal, less chance of implication Reasonable to hold parties contracted based on & knowledge that terms in previous contracts Henry Kendal & Sons v William Lillico & Sons Test: Reasonable man Have parties virtually assented to terms Must not expressly have inconsistent terms Relevant terms are part of prev agreements Evidence of previous consistent dealings (Consider both # and consistency) Parties need actual knowledge of the terms Lord Devlin, McCuthcheon v David Macbrayne Not in writing thus parol evidence rule N/A Henry Kendall & Sons v William Lillico & Sons Custom or Usage Test of Fact Term is known and acquiesced to. Everyone assumes it part of contract. Consistent with express terms Knowledge of implied term not required Not likely to be implied cf. other grounds Parol evidence rule N/A To Complete Agreement When all terms are not finalised, terms may be implied to complete agreement Hillas & Co v Arcos Applicability of parol evidence rule: Uncertain

Implied Terms #2 – Terms implied regardless of intent Class of contract Statute Good faith, fair dealing and reasonableness Duty of Cooperation Courts will imply terms based on policy grounds Australis Media Holdings v Telstra Corporation Test: Policy Decision Categories where terms will be implied Goods & services Must fit purpose for which they were supplied Sammuels v Davis Professional services Reasonable care must be taken Greaves & Co (Contractors) v Baynham Employment Safe place of work Inform employees of rights in particular period Scally v Southern Health and Social Services Board Building Fit for habitation conduct professional and workmanlike Perry v Sharon Developments Co Franchise agreements Good faith and fair dealing Far Horizons v McDonald’s Australia Parol evidence rule N/A Statutory implication of terms in contracts Provision of consumer credit Consumer Credit Code 1994 Sale of Goods/Services (pp. 266 for detail) Sale of Goods Act 1894 Hire Purchase Hire Purchase Act 1959 Insurance Insurance Contracts Act 1984 Parties must do all things necessary to ensure parties have benefit of contract Applied to ALL contracts, regardless of necessity Butt v McDonald Test: Reference to specific terms and overall substance of contract RDJ International v Preformed Line Products (Australia) To find: Common intention of parties Extent to which the duty of cooperation will require action Duty to act in good faith etc. in ALL contracts not fully settled issue in Australia Yes, it exists: Renard Constructions (ME) v Minister for Public Works Parol evidence rule: N/A

Parol Evidence Rule General Rule: Parol evidence rule will prevent an oral term from being introduced when a contract is brought down to writing Application: Applies to contract solely in writing Gordon v MacGregor Only when the parties intend written document to represent the entire agreement Express clause stating above is not necessarily enough to exclude oral terms (See construction of terms) Hope v RCA Photophone of Australia Exceptions: Evidence of collateral contract De Lassalle v Guilford Written contract not yet in force Pym v Campbell Written contract later varied or discharged Narich v Commissioner of Payroll Tax Implied terms available (see implied terms) Evidence is needed for rectification NSW Medical Defence Union v Transport Industries Insurance Co Do exceptions Apply? Does the Parol Evidence Rule apply? Yes No Extrinsic evidence is not permitted Extrinsic evidence is permitted Yes No