Plaintiff didn’t read conditions on ticket: are they binding?
Issue
Ratio
Notes
P stores bag in coat check
D loses bag
Ticket P received contains limitation clause
P didn’t see
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
Reason people are content to not tickets is because they generally concern reasonable conditions. If they didn’t dealing would stop
P contracts to ship bags home, P has to request the receipt, receipt contains conditions
Issue
Ratio
Notes
P uses company to ship bags home
Limitation clause on receipt
BUT agent of company offered free shipping (no receipt needed)
Are receipt conditions binding?
•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.
There was already an unconditional contract in this case, (free of charge, no receipt)
•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
If the sign had said explicitly that there were conditions that would have been fine
Olley v Marlborough Court Ltd.
P contracts to rent hotel room, Limitation clause = sign in room, too late to bind?
Is the limitation clause binding since it was in the room?
Three ways to make a condition a part of a contract:
1. Make the other party sign a document with the conditions (allowing you to believe they are aware and consented)
2. 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
3. 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
#1 doesn’t work in Canada if you know the person didn’t read/understand
D received limitation clause days after execution of contract
D had contracted many times before with the P
Is limitation binding
•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
Part of clause was unreasonable but the front of contract stated “At Owner’s Risk”
Defendant did not reject the limitation clause upon receiving it days late. Paid for several months
Denning in British Crane states only 2 previous dealings is not enough to support implied term
McCutcheon v David MacBrayne Ltd (key case)
P had agreed to limitation clause many times before, not this time. Signature not representation of agreeing if contract is too long/complex
Issue
Ratio
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P contracts to ferry car to mainland
D did not get P to sign standard agreement but had in the past
Agreement is very lengthy includes limitation clauses
Is the P estopped because he had signed agreement in past?
•Per Lord Devlin: previous dealings are relevant only if they prove knowledge of the terms, actual and not constructive, and assent to them.
What is needed for a condition to be considered with a contract:
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.
If P had been able to read and understand the terms the previous dealings wouldn’t have mattered because they contracted without conditions this time.
P receives ticket (w/ limitation clause on back) from automated teller
Limitation clause is unusual, excludes limitation for personal injury (not just damage to held property)
P is physically injured
•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 customer notice of it.
•D must make unusual clauses (like limitation of personal liability) explicitly clear (front of ticket/bold font)
General assumption is party is free to reject conditions when handed over by clerk. Can’t happen with machine
British Crane Hire Corp. Ltd. v Ipswich Plant Hire Ltd.
Commercial Parties, Can a party rely on limitation clause if it had been signed in past but not this time (yes if standard form exists)
Issue
Ratio
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Both P and D are companies that rent cranes
D rents crane from P
Crane sinks into marsh (neither party is negligent)
Limitation clause wasn’t signed, can it still apply?
•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.
o If both parties know that that condition is generally standard for those contract (ie if standard form contract exists in industry)
Judicial task is to decide what each party was reasonably entitle to conclude from the attitude of the other
Doesn’t apply if one party is consumer b/c of unequal bargaining power
Tilden Rent-A-Car v Clendenning
Party clearly did not read the contract thoroughy
Issue
Ratio
Notes
The party wishing to rely on exclusion/limitation of liability clauses should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party, in absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum
