BetterLawNotes-5 (2)


Where the provision is not in a contractual document signed by the defendant, the claimant must show that he took reasonable steps to bring the provision to the defendant’s notice.

Parker v South Eastern Railway Company (1877) 2 CPD 416

The claimant had deposited a bag in the defendant’s cloakroom, paid the attendant a fee of 2d., and received a ticket on one side of which were printed a number and date together with the words “See back”. On the other side were printed various clauses, one of which stated that the defendant would not be responsible for any package exceeding £10 in value. When the claimant presented his ticket to collect his bag, the bag could not be found. The claimant sought damages from the defendant, the value of his bag exceeding £10. The claimant gave evidence at trial that he had not read what was printed on the ticket but that he knew that tickets of that sort contained printed matter but did not know what it was and that he had supposed the ticket to be a receipt. At the trial judgment was given for the claimant. The Court of Appeal however held that the trial judge had misdirected the jury and ordered a re-trial. 

According to Mellish LJ, the proper direction in cases of this sort was as follows:

‘if the person receiving the ticket did not see or know that there was any writing on the ticket, he is not bound by the conditions; that if he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions; that if he knew there was writing on the ticket, but did not know or believe that the writing contained conditions, nevertheless he would be bound, if the delivering of the ticket to him in such a manner that he could see there was writing upon it, was, in the opinion of the jury, reasonable notice that the writing contained conditions.’

Thompson v London Midland & Scottish Railway [1930] 1 KB 41

The claimant, who was illiterate, had a train ticket bought for her. The ticket was an excursion ticket and cost 2s. 7d. compared to the usual price of 5s. 4d. On the face of the ticket were printed the words “Excursion. For conditions see back.” On the back was a notice that the ticket was issued subject to the company’s conditions contained in its timetables. The timetables, only one copy of which was available at the booking office, could be purchased for 6d. and contained at p.552 a condition to the effect that the company accepted no liability for any injury sustained by a ticket-holder however caused. The claimant was injured due to the company’s negligence. The Court of Appeal upheld the judge’s finding that the company was not liable.

Chapelton v Barry UDC [1940] 1 KB 532

Mr Chapelton went to the beach with Miss Andrews. By the side of a cafe there was a pile of deckchairs belonging to the Council and a sign stating that the deckchairs were available for hire at a rate of 2d. per 3 hour session. The notice asked the public to obtain tickets from an attendant and retain them for inspection. Mr Chapelton took two chairs from the attendant and two tickets. He glanced at the tickets and put them in his pocket. In his evidence, Mr Chapelton said he had no idea the tickets contained any conditions. When he sat down on his chair, the chair collapsed injuring him. Mr Chapelton sued the Council who sought to rely on words printed on the back of the ticket excluding any liability on the part of the Council for injuries sustained by the public. The Court of Appeal held that the words were ineffective. The terms of the offer were contained in the notice by the pile of chairs and the only condition was payment of 2d for three hours’ use of the chair. The ticket was not like a railway ticket, ie, intended to be a contractual document: it was merely a receipt which acted as evidence that money had been paid.

Olley v Marlborough Court [1949] 1 KB 532

The claimant checked in at the defendant’s hotel. A notice displayed in the claimant’s room sought to exclude liability for stolen property. The claimant had some property stolen and sued the hotel. Held: the exclusion clause was ineffective – the contract had been made at the time the claimant checked in.

Thornton v Shoe Lane Parking [1971] 2 QB 163

Mr Thornton wanted to park his car in the defendant’s multi-storey car park. At the entrance was a sign giving the scale of charges and stating that cars were parked at their owners’ risk. He drove up to the entrance, whereupon a light turned from red to green and a ticket emerged from an automatic machine. Mr Thornton took the ticket and drove on into the garage. When he returned to the garage he paid the appropriate fee at the office but then sustained injury, partly due to the defendant’s negligence, as he put some belongings in the boot of his car. The defendant denied liability based on an exclusion clause which they claimed was incorporated into the contract. On the face of the ticket issued by the automatic machine were the words “issued subject to the conditions of issue as displayed on the premises”. Inside the car park was a panel on which various conditions were printed, including one excluding liability for injury however caused. However the defendant’s argument was rejected by the judge who awarded Mr Thornton damages. The defendant’s appeal was dismissed by the Court of Appeal. Lord Denning thought contract made when T put his money into the machine. The offer was made by the proprietor holding the machine out as ready to accept money. (Megaw LJ and Wilmer expressed no conclusion on when contract made).

Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433

The defendant hired some photographic transparencies from the claimant. One of the terms of the written agreement specified that any transparencies not returned within 14 days would incur a daily holding fee of £5 per transparency per day. The defendant, who had not read the term, held 47 of the transparencies for a total of 28 days. The claimant sought to recover the holding fee. Held: insufficient notice had been given of such an onerous term and accordingly it did not form part of the contract.

AEG (UK) Ltd v Logic Resource Ltd [1996] CLC 265

A majority of the Court of Appeal held that a clause requiring the buyer to return defective goods to the seller at his own expense was not incorporated as it had not been fairly and reasonably drawn to the buyer’s attention. 

But note the judgment of Hobhouse LJ: he would have decided case by reference to UCTA and not by whether the term was properly incorporated.

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