CHAR_A01.PDF, page 1-18 @ Normalize ( CHAR_A01.QXD )

Strength of inducement

A casual remark is less likely to be regarded later as a term of the contract than
a statement made with much persuasion. Contrast the following two cases.

Incorporating terms into oral contracts

It would obviously be unfair if one party to a contract was allowed to claim
that he had contracted on certain terms unknown to the other party – the
essence of a contract is agreement. The terms of an oral contract must
therefore be apparent to both parties before any contract is actually made.
A term will usually be considered to be incorporated into a contract if:

• the affected party knew of the clause, or


• reasonable steps have been taken to bring the term to his notice.

In deciding whether a party has had reasonable notice of a term, the courts
look at the extent, or degree, of the notice, and at the point in time at which
the notice was given.

The degree of notice

Incorporation of terms 97

Ecay v Godfrey (1947)

The defendant described the boat he was selling as ‘sound’, but suggested

that the buyer obtain a private survey. Because of this, the statement was

held not to be a term of the contract of sale.

Schawel v Reade (1913)

The seller of a horse claimed that it was sound and that the buyer need not

look for anything. He said, ‘If there was anything the matter with the horse

I would tell you.’ The claim was held to be a term of the contract of sale.

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