FavoriteLoadingSave to briefcase | Rating: | By (2012)

  • PrintEmail Link
  • Viewed 1,580 times | Saved to 69 briefcases
McCutcheon v David MacBrayne Ltd, 1964 SC (HL) 28

Facts:

D sends car by boat. D had done so many times before. D gets presented w/ doc with many conditions in fine print that he never read cause it would take too long. P never got D to sign this time. The boat crashed

Ratio:

Past dealings are irrelevant, for conditions to be imposed on P they must be in the contract between P and D, unless it can be proved that in the previous dealings P had actual knowledge of the conditions.
**Previous dealings are relevant only if they prove knowledge (or by clear implication) of the terms, actual not constructive
**Onus are party trying to rely on the clause

Analysis:

This is the question for unsigned doc cases - Did they do what was reasonable to bring it to the attention of the other party?

If you are doing something to limit your liability then you must make it clear to the consumer then you are limiting your liability. You can’t bring conditions into a contract unless brought in by clear expression, incorporation, or implication


Leave a Comment

You must be logged in to participate.

This document is a general discussion of certain legal and related issues and must not be relied upon as legal advice. This document may not have been written or reviewed by a legal practitioner. For more information, please see the website Terms of Service.