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Facts:
o Defendants urgently required a crane; appellants quickly supplied
one.
o Arrangements made over the phone
o Two previous transactions between parties, although IPHL
manager who ordered crane unaware of them.
o Crane arrived and used before written contract signed
o First mishap: driver drove crane over marsh despite IPHLs
manager telling him to wait for navimats, crane sank, removed
expensively
o Second mishap: navimats arrived but machine sank into marsh
again
Issue: Who is to bear the cost of the mishaps?
Holding: Plaintiffs pay for first; defendants pay for second.
Reasoning:
Denning:
o First mishap was due to drivers negligence, so plaintiffs must pay.
o Although previous dealings irrelevant, both parties are in the
same trade and are of equal bargaining power
o Defendants themselves use similar conditions when hiring out
cranes, both parties used a variation of a standard form
o Therefore conditions are incorporated into the contract by
implication (because both parties AWARE of them)
o Common understanding may be derived from conduct of parties:
crane requested urgently, delivered quickly, on the assumption that
defendants accepted plaintiffs terms.
Sachs:
o Would be different if parties were from different walks of life
o Conditions of contract are reasonable; and they are of a nature
prevalent in the trade which normally contracts on the basis of such
conditions.
Ratio: Where consent is not determined, knowledge of terms is
necessary for their implication into a contract. Knowledge
requirement is satisfied by the fact that conditions were part of
industry standard.
My Comments:
On the surface it doesnt look much different from previous case
(McCutcheon). Whats the difference? It wasnt clear that the
plaintiffs knew the condition or clause even though they guessed it.
Denning argues that even if there was not a condition, judges can
imply a term. For example, if you ask for delivery without them
giving you an hour of delivery, theyre implying the term that it
would be delivered during business hours, even though its not
stipulated. The clause here was reasonably fair unlike the first case.
Civil law takes the same rule but has an exception for contracts of
adhesion or consumer contracts (Art 1435-37).
Art 1435 you have to show knowledge that the consumer know of
the terms of the other document (external clause). Comments: You
need to know what the specific conditions were, not just that there
might be such terms ex. subject to the conditions.
Parker v South Eastern Railway [1877]
Facts:
P put bag in coat check and received paper ticket. On back of
ticket it said company not responsible. P went back no bag. P never
saw notice on the ticket
Issue(s):
Was P bound by the conditions on the ticket?
Ratio:
If he knew of the writing but did not know or believe there were
conditions, he is still bound, if when delivered to him he could see the
writing and there was reasonable notice given of these conditions if
no reasonable notice given then not bound.
The onus is on D (the giver of the ticket) to do what is necessary to
make him reasonably aware of the conditions.
TEST: Have they done what is reasonable to bring it to their
attention?
What is reasonable depends on the circumstances
Analysis:
When document is signed it is immaterial if they have read the
doc and its contents, in the absence of fraud it will be enforceable.
When a doc w/o signature there must be evidence that the parties
assented to it. If they have assented, in the absence of fraud, it is
immaterial if they have read the doc or knew the contents of the doc.
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 of the writing and that included the conditions he is bound,
whether he read them or not.
My Comments:
You can be bound if you signed or assented. Ex. If somebody gives you
a ticket and you know or SHOULD HAVE KNOWN that the ticket has
conditions, then the argument is that you have assented.
Issue: Do you just have to know that the ticket has conditions or know
of the specific conditions?
Rule: According to the case, you can be bound by the conditions on the
back of the ticket, provided that a reasonable person would have
known that there are conditions there. It does not matter that you did
know yourself or did not know what the conditions were. Hardass,
mechanical approach.
What if you are illiterate and you cannot read the terms or you cannot
read the language? CML uses unconscionability or unfair business
practices (taking advantage of someone).
What happens in civil law when the contracts are outside consumer or
adhesion contracts?
Not sure
Denning said you are only bound if you knew of the condition (provided
that you can refuse, ex. You can give back ticket if you dont agree to
the conditions) or were given reasonable notice. He did not say that
you have to know about the specific terms of the conditions per se.
Because the clause in this case was so unusual and unfair, you would
need explicit notice. The more unreasonable the clause, the greater
need for explicitness is required.
Some clauses would need to be printed in red ink with a red hand
pointing to it before the notice could be held to be sufficient.
This modifies parker rule; but it does not mean you have to have read
the clause, just need to have notice of it.
Civilian approach
Tries to go more directly at the clauses instead of whether you have
consented them.
Adhesion contract is one that you do not negotiate the terms
(unilateral contract).
Art 1435 External terms of adhesion or consumer contracts need to
expressly be brought to the attention of the consumer or adhering
party.
Art 1436 if a clause in a consumer and contract of adhesion is
incomprehensible to a reasonable person, then it is null and void.
Art 1437 an abusive clause in a consumer or contract of adhesion is
null and void. A clause that is excessively and unreasonably
detrimental to the consumer or the adhering party and therefore is not
in good faith. (This article is mostly about unfair exemption clauses).
Abusive clauses cannot simply just be you paid too much.
The courts are especially severe with companies who monopolize the
competition.
My Comments:
Is hyperlink clause valid? It was easy to get to the clause (one simple
click), so yes.
If you have reasonable notice, then you are bound to the term.