The court will look at the usual practice of the particular business in question. If there is consistency in the course of dealing, the clause can be incorporated accordingly.
For instance, in McCutcheon v. MacBrayne, the claimant’s car sank on a car ferry owned by the defendant. The claimant had used the car ferry on a few previous occasions. Sometimes he was asked to sign a document, but sometimes he only had to fill out a form. On this occasion, he did not sign the document. The defendants tried to argue that the exclusion clause was incorporated through the previous course of dealing. It was held that there was no consistency in the course of dealings; therefore, the clause was not incorporated.
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