Incorporating Contractual Terms By Reference

A recent decision, National Asset Loan Management Limited v Michael Barker and Others [2014] IEHC 216, confirmed that as part of a summary judgment application, depending on the facts, terms and conditions of lending can be incorporated and apply to a bank / client relationship in circumstances where it is contended those terms and conditions were never actually given to the borrower. Although the decision relates to a bank / client relationship, it is of broader interest in terms of the incorporation of contractual terms generally. It also sets out a useful summary of the summary judgment jurisdiction, which is typically used for debt claims (which we have not reviewed for the purposes of this article). By way of background, the plaintiff was the national agency which took over defaulting loans from the State's banks. The defendant was involved in a property investment transaction for which money was loaned by one such bank. The defaulting loan was transferred to the plaintiff who sought summary judgment against the defendant for over €1.25 million. The relevant facility letter from July 2008 offered an overdraft of €30,000 and a loan of €957,000 continuing a prior facility relating to the purchase of a bar. The defendant claimed that the general terms and conditions were not notified to him and that he had not been given a copy of the applicable terms and conditions when the loan and overdraft facilities were initially provided. However, Charleton J noted that they were in fact mentioned in the first paragraph of the Facility Letter. He referred specifically to AIB v Galvin Developments and Others [2011] IEHC 314 in considering circumstances which determine whether or not general terms and conditions are incorporated into a contract. In that case, Finlay Geoghegan J had found that the bank's terms and conditions had not been enclosed with the facility letters. However, she found that:there is an express and clear reference to the incorporation of those terms in the offer...

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