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5 what elements must be established to successfully

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5) What elements must be established to successfully plead ‘non est factum’? The party seeking to rely upon this doctrine has a heavy burden of proof and must show that: 1) The document was different in character from what the person believed it was, and 2) The person signing the document was not negligent or careless in signing the document. Exercise 8.2 Unsigned Documents (Parker & Box, p 163-173) 1) Give examples from the cases of the types of unsigned ‘documents’ containing exclusion clauses that a business operator might try to rely upon. Most disputes relating to exclusion clauses occur in unsigned documents. The question that the court must decide is whether the exclusion clause printed on the ticket or docket is a term of the contract. If so, it will affect the customer’s rights. If not, it will not bind the customer. 2) If a customer does not sign a document that contains an exclusion clause, can a business operator still rely on the clause to limit or exclude their liability? 3) By reference to the table on the next page, what are the two rules used (which must be employed sequentially) for the courts use to determine the validity of an exclusion clause in an unsigned document. For each question the court asks, it employs a test. Cite case names for examples of each.
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The courts apply 2 tests to determine whether an exclusion clause on an unsigned document is a term of acontract: Nature of the document test Reasonable notice test The 2 tests are applied sequentially. If a customer fails the ‘nature of the document’ test, what else must be shown for a business operator to rely on the exclusion clause? It requires that reasonable steps be taken by the business operator to bring the clause to the notice and attention of the customer before the contract is entered into. This test is also objective Exercise 8.3 Unsigned documents: Exclusion Clauses on Signs (Parker & Box, p 165- 173) 1) What test is used to determine whether an exclusion clause on a sign is valid? The exclusion clause may be displayed on a sign, instead of (or as well as) being printed on a ticket or docket. This is generally effective, provided the sign containing the clause is prominently on display at a point where customers can read it before they enter the contract. The test is essentially the same as the reasonable notice test 2) What is meant by the requirement of notice and why is notice important? Notice is required in a reasonable time. Notice is important as one cannot enter into a contract without reasonable notice. 3) What did Olley v Marlborough Court decide about the timing of when notice of an exclusion clause is given? The notice was ineffective. The contract had already been made by the time the claimant had seen the notice. It did not therefore form part of the contract.
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