LAWS 203 - Terms - part 2

Incorporation can occur via prior dealing(s).

In the case of Bradshaw, the court held that in a situation, in which terms cannot be incorporated by notice, because of their untimeliness, if the party wishing to incorperate the terms has consistently provided the other party with the same terms in prior dealings, then those terms can be effectively incorperated.

In the case of McCutcheon Lord Hodson stated that if the party wishing to incorporate the terms, was inconsistent in their prior dealings, in terms of providing the terms to the other party, then the terms may not be incorporated via prior dealings.

Mixed contracts are a mixture of part oral and part written contracts.

The parole rule was a principle of law which stated that a court of law isn't concerned with parties administering oral negotiation evidence to add to, vary or contradict the formal written arrangement, they should only give attention to the formal documented agreement.

The current approach to the parole rule, allows a party to administer oral negotiation evidence that the documented terms of the contract, do not encompass the entire terms that the parties intended to be effective. This means that the parole rule is no longer at odds with the concept of mixed contracts.

A dispute concerning one party claiming the existence of additional terms, not documented in the written agreement.

The issue with these types of disputes concerns a judges natural thought processes, that if certain terms negotiated orally were not incorporated into the formalized agreement, then both parties clearly lacked the intention to be bound by those terms.

In the case of Newmans, Fisher J made a principle of law which governs the approach to mixed contracts in NZ. This priciple of law states that a reasonable man (bystander) is ascertain the intentions of the parties to be bound by the alleged orally agreed to term. If there is evidence of an uncomprehensive contract, then the reasonable man may hold that the parties were inteding for prior orally negotiated terms to be binding, in the absense of any contradictory documented terms within the contract. This priciple of law can apply vice versa as well, in favour of the parties lack of intention to be bound by the orally negotiated terms!