BetterLawNotes-5 (2)


It may be that in a particular transaction, the defendant failed to take reasonable steps to bring a provision to the claimant’s attention. However, that provision may be held to have been incorporated into the contract by virtue of the parties’ previous course of dealings.

J Spurling Ltd v Bradshaw [1956] 1 WLR 461

D had dealt with C, which ran a warehousing business, for many years. D delivered a consignment of eight barrels of orange juice to C for storage. A few days later D received from C a document acknowledging receipt and referring on its face to conditions printed on the reverse. When D came to collect the barrels he found that they all been damaged and that some were empty. In an action against D by C for non-payment, D counter-claimed that C was liable for the damage to the barrels. C sought to rely on an exemption clause contained in the printed document. Held: C was entitled to rely on the clause notwithstanding that it was contained in a document received by D after the contract had been made.

McCutcheon v MacBrayne [1964] 1 WLR 125, HL (Sc)

McCutcheon asked his brother in law, McSporran, to have his car shipped on MacBrayne’s ferry. At MacBrayne’s offices McSporran paid the appropriate fare and was given a receipt which he placed in his pocket without reading. He then delivered the car to MacBrayne. The ferry on which the car was transported sank, due to MacBrayne’s negligence, and the car was lost. McCutcheon sued MacBrayne for the value of the car.

MacBrayne sought to rely on a clause in its standard conditions that goods were carried at the owner’s risk. The conditions were contained in MacBrayne’s ‘risk notes’ which customers were ordinarily asked to sign before goods were accepted for carriage. On this occasion the MacBrayne employee had forgot to ask McSporran to sign a risk note. McSporran gave evidence to the effect that he had previously consigned goods with MacBrayne on a number of occasions. Sometimes he had been asked to sign risk notes, sometimes he had not. He said that he knew he was signing in relation to some conditions but did not know what they were and in particular he did not know that he was agreeing to the goods being carried at the owner’s risk.

The House of Lords held that the conditions were not incorporated in the contract and that MacBrayne was liable for the value of the car.

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