Tilden Rent-A-Car Co. v. Clendenning [1978] ON CA Facts: Defendant rented a car from plaintiff. Within the rental contract there where exclusion of liability clauses if the driver was drinking or driving illegally then indemnity for Plaintiff. Defendant had paid for additional insurance which would render him liable for no damages in the case of an accident. The clerk knew that Defendant hadn’t read to terms of the contract provided by Plaintiff. Defendant had gotten into an accident after he had a couple drinks while trying to avoid an accident which was already occurring. Defendant pled guilty in criminal trial to drinking and driving. Defendant had signed the rental contract however the exclusion of liability clause was on the back.
Issue: Does the exclusion of liability apply here?
Holding: No - the exclusion of liability DOES NOT apply here.
Reasons: defendant was in a rush and clearly had signed haplessly. He purchased additional coverage to give him indemnity. The party whom was enforcing the onerous terms was aware Defendant was unaware and did not provide any reasonable notice of exclusion of liability clauses. Dissent however upheld L’estrange and said these terms were not particularly onerous or strange, nonetheless there was sufficient attention brought to the terms on the backside of the contact where Defendant had signed. Therefore Defendant should be bound.
In short: Tilden rent a car- docs signed by rental car agreements that include exemption clauses are enforceable if clause not drawn to attention to party; BUT if rental company is aware customer is not aware of exemption clause it will not be enforced.
Rule: qualified the traditional rule ~ a party such as Tilden should not be able to rely on such “stringent and onerous” exclusionary clauses, unless: (1) “reasonable measures” have been taken to make he other party aware of the provisions; failing which (2) the party who denies knowledge need not prove fraud or misrepresentation (page 501)
