1.

ASSUMING NOGROW LTD IS IN BREACH OF THE CONTRACT OF SALE

DISCUSS THE VALIDITY OF THE TERMS OF SALE IN THE INVOICE.

The validity of the terms of sale depends on the operation of common law and the relevant
statute. On the facts, it would appear that given terms of sale, there are exclusion clauses.
An exclusion clause is a term of contract intended to exclude or limit the liability of one of
the parties to a contract, usually the seller.
It is a common law rule that the terms of a contract are of no effect unless they are
incorporated. Terms of a contract can incorporated by a number ways, one of which is by
signing the contractual document. The terms of the contract in this case would be valid even
if the buyer did not read the contract before signing it. However if the document was
brought to the attention of the buyer after the contract had been made, the terms in the
document will not be incorporated into the contract terms as held in Thus this is one of the
reasons why receipts and invoices cannot incorporate contract terms because they are
usually given after payment has been made (i.e. after the contract is made). In the same
vein, the court also rejects receipts and invoices as contractual documents as in
Applying these to the facts, it is conceded that the invoice containing the terms of the
contract was first brought to Barry’s notice when he decided to purchase Apple Gro and not
after the contract had been made (i.e. not after he made payment) thus it can be argued
that the terms were validly incorporated after Barry signed the invoice albeit he did not read
it. However, it can be successfully argued that the invoice is not a contractual document
because no reasonable person would expect to find contractual terms in a document which
proves that payment has been made. Thus it can be concluded that the terms were not
incorporated because the invoice is not a contractual document therefore the terms do not
form part of the contract and are thus invalid.