Parker v. The South Eastern Railway Company (1877)
Ratio:
A party is bound by conditions on a ticket if they are there are conditions and consent to the implied conditions because they are reasonable and are what one would reasonably expect. If they are unaware of conditions they do not consent
Facts:
Plaintiff deposits a bag in the cloak-room of the defendant's train station
Plaintiff is handed a ticket with writing (The front of the ticket says "see back")
Back of the ticket stipulates the defendant will only be responsible for items under $10
The bag is lost
Plaintiff claims he never saw signs stipulating the condition on the back, nor did he read the ticket.
Though he was aware that there was writing on the ticket
Judge in original trial leaves the jury with the following questions
Did the plaintiff read or was he aware of the special condition upon which the articles were deposited?
Was the plaintiff, under the circumstances, under any obligation, in the exercise of reasonable and proper caution, to read or make himself aware of the condition
The defendants attempted to get a new trial on the grounds that the judge misdirected the jury
This motion was discharged, the defendants are appealing.
Issue:
Is the plaintiff prevented from recovering because of the conditions on the ticket which he/she claims to not have read or known about
Is a written document, which contains conditions, that is created in the formation of a contract binding even if one party does not read the conditions?
Under what conditions would this document be binding or not binding?
Judgment:
New trial granted
Reasons:
First the judge addresses an argument that the defendant should not be bound because the employees should not have taken the bag in the first place.
This is quickly dismissed, the employees were operating with the scope of their employment and the defendant will be bound by what follows
Q: Is the plaintiff bound by the conditions contained in the ticket?
People can agree to conditions on a written document without a signature but there must be some act to show they have assented to the conditions
People may also agree to the conditions without reading them but they must have known that the document contained conditions
By receiving the document with conditions and not throwing it away that is consent even without reading
Is it enough to say that the plaintiff is bound because he knew there was writing?
No, just because there is writing does not mean that the plaintiff was aware it contained conditions
There are examples in which a ticket likely doesn't have conditions and serves some other purpose (a ticket at a toll booth to avoid paying at other toll booths)
And examples where a document likely does have conditions (a bill of lading for items transported off a ship)
Q: If mere awareness of writing is not enough to bind an individual to conditions, then under what circumstances can the defendant be entitled to assume that the ticket they give binds the individual?
"this seems to me to depend upon whether people in general would in fact and naturally, draw that inference?" (that the ticket has binding conditions)
The railway company must, do what is sufficient to inform people in general that the ticket contains conditions. If they do this then an individual cannot benefit because of their ignorance.
If a person is not bound just because they have not read the ticket and another individual is bound because they did then the ignorant individual is at an advantage because of their ignorance
Q: What questions should the original judge asked of the jury?
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
If he knew there was writing, and knew or believed that the writing contained conditions, then he is bound
If he knew there was writing on the ticket, but was unsure about whether it contained conditions, he would be bound if the jury found that by receiving a ticket in a manner which he could see there was writing on it was reasonable notice that the writing contained conditions.
The question isn't whether the plaintiff was obligated to read the ticket, but "whether the railway company did what was reasonably sufficient to give the plaintiff notice.
Second Judge's judgement:
The fact that people are content not to read tickets is because tickets generally contain reasonable conditions that individuals would agree to. If they contained unreasonable conditions then all dealing would soon stop.
When a person is handed a ticket, if they can see there is writing it is as though the person had said "read that"
The writing is naturally about the matter at hand and the person is free to read it and disagree or to consent by not reading it, because these things generally are reasonable because people don't put unreasonable conditions into deals because if they did there wouldn't be deals.
What is going on:
The judges are trying to protect individuals but also trying to ensure that business deals are still able to occur. Documents with conditions are made in contracts all the time, the judges are laying out what is minimally necessary for an individual to be bound by the contracts if they choose not to read the writing on the documents even though they assent to the contract the documents are a part of.
Lamont v. Canadian Transfer Co. Ltd. (1909)
Ratio:
If an employee is acting within his/her employment and offers a different form of contract then that contract can be accepted and the employer can be held liable to it.
The conditions conveyed on the ticket must be handed over at the time of contracting and the ticket must be necessary to the contract
Facts:
The plaintiff gave his bags to his father-in-law to send them to his home
The father-in-law gives them and 25 cents to Horn to ship them home
Horn takes them to Dunn, an agent of the Canadian Transfer co
Dunn offers to send the trunks free of charge but Horn refuses
Horn returns 15 minutes later to ask for a receipt to give to the father-in-law
The receipt contains conditions that the defendant isn't liable for bags over $50
The plaintiff sues for the whole cost
Issue:
Was the plaintiff made aware of the conditions on the receipt so as to be bound to them
Horn also wasn't given the receipt immediately he had to return and asked just for a receipt
A receipt alone doesn't normally contain conditions
The original contract was unconditional
The defendants are attempting to claim the plaintiff is bound by a different contract because he received a receipt that contained conditions
What’s going on:
Did the defendant sufficiently convey the conditions they wished the plaintiff to be bound by?
No.
There was an unconditional offer and the employee didn't issue the receipt which contained the conditions
If an employee is acting within his/her employment and offers a different form of contract then that contract can be accepted and the employer can be held liable to it.
Employees are not just empowered to make one type of contract.
In this case the employee is at fault
Chapelton v Barry Urban District Council (1940)
Ratio:
The nature of the document must be one in which you expect to find conditions on it
If conditions are not public knowledge they must be expressly conveyed, they cannot be communicated via a ticket that a sign “respectfully requests” you acquire
Facts:
Plaintiff is injured sitting in a sun chair rented from the defendant
He was given a ticket from an attendant when he took the chair
He did not read the ticket, nor did he think it contained conditions
Ticket says "Available for 3 hours. Time expires where indicated by cut-off and should be retained and shown on request. The Council will not be made liable for any accident or damage arising from hire of chair."
There was a sign posted which stated "hire of chairs 2d. Per session of 3 hours. The public are respectfully requested to obtain tickets properly issued from the automatic punch in their presence from the Chair Attendants.
The trial judge held the plaintiff was bound by the condition on the ticket
Issue:
Was the condition that the Council not be liable for injuries binding on the plaintiff?
Judgement:
For the Plaintiff
Reasons:
The ticket serves a function so that chair attendants may know how long the individual is allowed to use the chair for and as evidence that 2d. Is owed
The judge sees the ticket as nothing more than a receipt for money which serves to indicate when they person can use the chair.
The signs "respectfully requests" that individuals receive a ticket so that the attendants know you have paid and how long you are allowed to sit there for. The receipt is for the convenience of the attendants it is not for your convenience
What’s going on:
What's different here is that in the previous cases the ticket was used so that they person could retrieve their goods or was explicitly made exchanged to convey conditions
In this case the reason for the receipt is for the convenience of the defendant so that they might know how long the individuals had been in the chair.
Olley v. Marlborough Court Ltd. (1949)
Ratio:
Three ways to make a condition a part of a contract:
Make the other party sign a document with the conditions (allowing you to believe they are aware and consented)
Before or at the time of the contract give the other party a written document specifying the contracts terms and making it clear the contract is on those terms
A prominent public notice which is plain to see when one makes the contract or an express oral stipulation will also suffice at the time the contract is made
Facts:
A man and wife check into a hotel and pay for a week in advance
Upon entering the room there is a sign stating "The proprietors will not hold themselves responsible for articles lost or stolen, unless handed to the manageress for safe custody in a sealed package and a receipt obtained"
The wife's furs are stolen.
It was held that the sign was seen too late to be a binding condition
Issue:
Is the sign in the hotel room binding on the plaintiff's?
Decision:
For plaintiffs
Reasons:
Is the notice a part of the contract?
Best ways to make conditions part of a contract:
Make the other party sign a document with the conditions
Before or at the time of the contract give the other party a written document specifying the contracts terms and making it clear the contract is on those terms
A prominent public notice which is plain to see when one makes the contract or an express oral stipulation will also suffice at the time the contract is made
J Spurling ltd. v. Bradshaw
Ratio:
If an individual has received a similar ticket repeatedly in the past plays a factor in whether the terms and conditions of the ticket apply.
Clauses not expected to be implied need to be explicitly known
Facts:
Defendant stored barrels of orange juice with the plaintiffs (warehousemen)
A few days after receiving the barrels the plaintiffs send a "landing account" acknowledging receipt of goods and noting terms and conditions of storage on the back
"We will not in any circumstances… be liable for any loss, damage or detention howsoever, whensoever or wheresoever occasioned in respect of any goods entrusted to… us in the course of our business, even when such loss, damage or detention may have been occasioned by the negligence, wrongful act or default of ourselves or our servants or agents"
They were stored for several months
The barrels were empty when the defendant came to pick them up and they refused to pay the storage charges
The plaintiff sues on account of the clause above
Issue:
Does the clause apply to the contract of storage when it was sent days after the defendant left the barrels at the warehouse
Decision:
For Plaintiffs, the clause does apply
Reasons:
The clause itself was not so unreasonable as to require special treatment in how it was shown to the defendant.
The plaintiffs were not acting outside of their contract/duty
The landing account clearly laid everything out
The barrels could have been insured
They were stored at "the owners risk"
Q: the landing account and invoice was issued after the goods had been received how could they be part of the contract?
The defendant had done business with the plaintiffs in the past and had received many landing account documents before and so was aware, or reasonable could have and should have been aware of the terms and conditions of storing items at this warehouse.
The defendant did not reject to the landing account upon receiving it and paid for several months
McCutcheon v. David MacBrayne Ltd. (1964)
Ratio:
Per Lord Devlin: previous dealings are relevant only if they prove knowledge of the terms, actual and not constructive, and assent to them.
Conditions in a contract must be brought into it by expression, incorporation or implication. They are not brought into a contract simply because one party has inserted them into similar transactions in the past and has not given the other party any reason to think that he will not want to insert them again.
Facts:
The defendant is a shipping company (perhaps the only on the isle of islay) who was shipping the plaintiff's car.
The vessel was driven negligently into rocks and sank
Generally when one ships something using the defendants company they are made to sign a lengthy document which no one ever reads because of its unreasonable length
On Oct. 8th , 1960 the defendant forgot to make the plaintiff sign the document and on this day the ship sank
The plaintiff had always signed the document in the past
The defendant is attempting to use estoppel by saying the plaintiff had always consented in the past and so the signature wasn't important and that the plaintiff had always represented that he understood the terms so he can't say no that he didn’t
Issue:
Can the plaintiff have been said to have assented to the document even though he did not sign it as the signature on these documents are a formality as the conditions have been assented to in the past (and the individual has no other means of shipping the goods)
Ruling::
For the Plaintiff
Reasons:
Devlin first deals with the problematic Ruling: from Harris v Great Western Ry. Co.
"by assenting to the contract thus reduced to writing, he represents to the other side that he has made himself acquainted with the contents of that writing"
In this case the plaintiff may have assented to the contract but no one could argue that he represents to the other side that he has made himself acquainted because there is no way the person has been made acquainted
But that case dealt with an unsigned document whereas this case deals with a document without a signature
The plaintiff has signed the document in the past assenting to the contract, does this mean the defendant can claim that he would assent to it and cannot say that he wouldn't?
Devlin: Previous dealings are relevant only if they prove knowledge of the terms, actual and not constructive, and assent to them.
When a party assents to a document forming the whole or part of a contract, is bound by the terms of the document, read or unread, signed or unsigned, simply because they are in the contract.
Not because they represent that they have read the document
But, If one is to try to estoppe the other party because they represented that they had made themselves acquainted then this estoppel can only work within that contract, and not within future dealings
The defendant never shows that the plaintiff understood the conditions in the previous engagements just that he consented to the contract.
NOTE: normally there might be some liability based in the plaintiff's general knowledge about how shipping works but they gave the man an unconditional contract when they didn't ask for his signature.
Devlin then expressly states what it takes for a condition to be considered within a contract:
"There can be no conditions in any contract unless they are brought into it by expression, incorporation or implication. They are not brought into it simply because one party has inserted them into similar transactions in the past and has not given the other party any reason to think that he will not want to insert them again"
In this case there were no conditions in the contract
If there was the plaintiff could argue they never would have agreed to it and it would have been tough luck
Since they slipped up the defendant can't say oh they would have agreed to it. Tough luck.
You can't make someone liable to agree to terms they are unaware of just because that’s how its usually done.
What is going on:
In the moment of contracting you have the defendant forgetting to get the plaintiff to agree to the conditions he has agreed to in the past. But he has never understood or known what the conditions are. The defendant is then saying "oh well you agreed to them before and thus said you understood them so you would have this time." but that is bullshit and the court knows it. The plaintiff never knew any of the conditions and furthermore it doesn't matter because they contracted with him without the conditions
Thornton v. Shoe Lane Parking Ltd. (1971)
Ratio:
With automated ticket machines the customers must know the conditions which the ticket is subject to, or else the company must do what is reasonably sufficient to give him notice of it.
Facts:
Plaintiff parks his car at the defendant's multi-storey automatic car park
There was a sign on the outside labelling prices for parking and stating "All Cars Parked At Owners Risk"
The main received a ticket from an automatic ticket machine
When retrieving his car three hours later the plaintiff is severely injured
Sues the defendant and receives almost 4000 pounds
Defendant appeals claiming the ticket was a contract stating it was "issued subject to the conditions of issue as displayed on the premises"
The signs are few and you have to look for them
Issue:
Was the ticket stub a contract that binds the plaintiff
Seems straightforward example of previous cases but for automated things
Tickets in ticket cases have been seen as an offer that the customer accepted by not refusing it
Denning things this is silly because no one reads them, there's no time to read terms and conditions
These theory doesn't apply to automated tickets because there is no way for the plaintiff to reject
The money has been given the ticket has been given
The defendant has to make all conditions of the contract explicit
Especially an exempting condition as the statement "subject to conditions" doesn't naturally lead one to think that rights are being taken away
The conditions would need to be posted on the machine or outside the building as the customer enters so that it is brought to the customers attention sufficiently
Even if the automated machine is considered a clerk it fails because it can’t sufficiently draw attention to conditions. Limitation of personal liability is a very crucial condition that must be made explicit
British Crane Hire Corp. Ltd. v. Ipswich Plant hire Ltd. (1975)
Ratio:
A term can be incorporated into an oral contract through implication if both parties know the other party would never contract without the inclusion of the condition.
If both parties know that that condition is generally standard for those contract
Facts:
The both the plaintiffs and the defendants are companies which hire out cranes and heavy machinery
The defendant required the rental of a crane from the plaintiff for work in a marsh
Two incidents occurred but the second is what matters
Neither the plaintiff nor the defendant were found negligent in the sinking of the crane into the marsh
Though it had been signed twice in the past by the defendants
Issue:
Are the conditions of the form incorporated at the formation of the contract through implication that those conditions would apply?
Judgment:
For plaintiffs, the conditions are incorporated
Reasons:
Denning notes that generally the past dealings generally are not strong enough to support an implied term in an oral contract. Especially when there were only two past dealing
But, in this case both parties are of equal bargaining power, both have an equal knowledge of the industry of renting equipment as both rented equipment
It was found that these conditions are standard for all rentals
Both parties knew that this were the conditions that were habitually imposed on hirers by the owners (there was an standard form of conditions for rentals in the industry)
Denning quotes Reid: "The judicial task is not to discover the actual intentions of each party it is to decide what each was reasonably entitled to conclude from the attitude of the other"
Since the plaintiffs were in a rush for a crane and the paper would not be able to get there for a day or two it is easy to assume that they knew the conditions were implied in the renting of the crane as it is standard practice
The plaintiffs have never lent out a 10,000 pound crane without those conditions
Other judge agrees but wants to note a disagreement with the trial judge's finding that there was an obligation by the plaintiffs to return the crane. No one asked whether they had to return the crane if it was in such a state it didn't need returning (I don't quite know if this is right)
