In McCutcheon we get a third: exemption clauses should be included in the contract on the bases of prior dealings between the parties. On page 494 it says if two parties have made a series of similar contracts containing certain conditions, and then they make another without expressly referring to those conditions, it may be that those conditions ought to be implied. This is discretionary (no legal right). But this was not the case. They held only ever dealt in the past about 3 or 4 times, and it was inconsistent whether he was given the notice of risk in advance. NOW had he been given it in advance of payment consistently (every time) then it might have been implied. But they didn’t do this. So they were unable to enforce it. The conditions were not incorporated into the contract.
So to sum up the above 3 cases: The enforceability of exemption clause depends on the way of the incorporation of the clause in the contract. For an exemption clause to be enforceable it must be incorporated in such a manner that it is an integral part of the contract. It is the responsibility on the part of the party incorporating the exclusion clause to inform the other party of such existence of the exclusion. This can be done through signature or custom or notice, so long as it is displayed prominently for the other party to see. In other words, the party incorporating the onerous clause has to do everything possible to bring the clause to the notice of the other party.
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The last two cases below were prefaced with some discussion of the traditional view of contract theory going out of business, which basically said a signature was conclusive evidence of ascent to the terms of that contract, unless (1) he was defrauded / deceived to enter into that contract; and (2) misrepresentation [if one party is induced to enter into an agreement based on misrepresentation, then the agreement ought to be unenforceable – think fraud and the requirement of intent to deceive] see page 500. This is based on 19th century classical liberal ideas of self-interest and reliance. Prof says we are shifting toward a more paternalistic view where the courts look out and come to the aid of parties to protect them against exemption clauses
