Signature, Consent, and the Rule in<i>L'Estrange</i>v.<i>Graucob</i>

Spencer, J. R.

doi:10.1017/s0008197300090255

Cited by 5 publications

(1 citation statement)

References 4 publications

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“…They include but are not limited to, all remedial clauses,133 exclusion clauses,134 termination clauses, arbitration clauses135 and restrictive covenants.136 This position is akin to Spencer's. 137 As can be deduced from Eisenberg, contractual addressees are unlikely to treat clauses relating to consequences of non-performance or default as necessary to their decisions to enter a contract.138 This is because people often discount the possibility of breach or default. For this reason, offerees will likely treat remedial clauses as non-salient because they consider a breach a low-probability event.…”

Section: The Requirement That Terms Must Be Onerous or Unusualmentioning

confidence: 99%

Rethinking the signature rule and the sufficiency of signatures as evidence of notice of terms in (business-to-business) commercial contracts

Abdussalam

2023

NILQ

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Using socio-economic analysis, this article critiques the oversimplification at the heart of the signature rule, which governs sufficiency in the notice of terms to a contractual counterparty concerning signed contracts in Commonwealth common law jurisdictions. As demonstrated in this article, two main factors account for the inadequacy of the signature rule as currently conceived. The first is the assumption that commercial entities are sophisticated. Second, in contested cases concerning notice, only manifest onerousness or unusualness of terms should warrant a heightened duty of notification on an offeror. This article argues that the signature rule lacks nuance and should be reformed to account for context-specificity. This is because: a) commercial sophistication is a matter of gradation; and b) terms need not be unusual or onerous to require heightened disclosure requirements – what matters for specific disclosure is the salience or peculiarity of a term.

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Section: The Requirement That Terms Must Be Onerous or Unusualmentioning

confidence: 99%