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Incorporation of terms: time for blu-sky thinking?

Lloyd's Maritime and Commercial Law Quarterly

Incorporation of terms: time for blu-sky thinking?

Joanna McCunn*

Blu-Sky Solutions v Be Caring
Green v Betfred
Much has changed since the days when shifty cigarette-machine salesmen hawked their brown-paper forms around the cafés of Llandudno. Alas, the mischiefs of standard form contracts have not. Indeed, the advent of online contracting has offered even more opportunities to slip burdensome terms past the unwary. Two opportunistic companies have recently been rebuked by the High Court for failing to make their onerous terms clear online. In both cases, the clauses were held not to form part of the contract at all. But how are the rules on incorporation of terms coping with this new style of contracting?
In English law, a signature makes all the difference to questions of incorporation. If the term is not set out or referred to in a signed contract, it is not incorporated unless one party does what is reasonably sufficient to give the other notice of it.1 Since most people assume that standard form contracts “are only concerned with ancillary matters of form and are not of importance”, any onerous or unusual terms must be fairly brought to the other’s attention (“the Interfoto principle”).2 In contrast, any terms that a party signs are incorporated, and it is “wholly immaterial” whether she is aware of them or not.3
This signature rule is not, however, absolute. One exception is that a term will not be incorporated if the party is induced to sign it by a misrepresentation of its contents.4 Denning LJ did his best to construe this exception broadly, holding that a failure to draw

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