Contract Law

5 Slogans:  (find ‘em)

*The pl always sues in his/her capacity of promisee
*The consideration is that which the promisee must demonstrate to the court that he/she exchanged to the promisor for their promise
Must take this decision path initially to get one’s bearings in the actual case.
Identifying the promise and dispute will tell you who the parties are – will coincide.

Too often students do not know where to begin with a problem.  Must orient oneself as per above.

*A promise of consideration is as good as consideration for this purpose.

In the eyes of the law, for this purpose, the law is prepared to treat the promise of something as equivalent to consideration – which is why it can be that my promise to convey my car to you for $1000, and your mutual promise to pay me $1000 for title to my car, gives rise to a binding agreement.

*Consideration is always a bargained-for detriment to the plaintiff-promissee
•    Always; bargained-for; detriment
•    Bargained-for is not just any detriment that counts as consideration.
o    It must be a detriment that was part of the bargain.
o    Ex:  In Dalhousie, the buildings (though a detriment) were not bargained for.
•    Something for something – an arrangement.
•    Consideration is always a bargained-for detriment.
•    **”Always”:  will come back to this word in this statement.

*Past Consideration is no consideration.

P 264
*Consideration need not be adequate;
or, the law does not inquire into the adequacy of consideration.
•    But, law does look at the sufficiency of consideration.
•    By adequacy – we mean the equivalence of the exchange; the quantum; quantity
•    Ex:  Arguing that selling one’s $10,000 car to another person for $1000 – the court does not allow us to go back and examine the adequacy of the arrangement.
o    If one is prepared to part from one’s property for a given price, then the value is simply seen as subjective; as in the appetite of the contractor.
•    By sufficiency (quick and dirty distinction between the two), we mean the ‘substance’ as opposed to the quantity.
o    Comes up in a surprising number of cases.
o    Means the consideration must partake of the substance of things that the law is prepared to accept as consideration.
•    Obvious example is moral consideration.
•    Cannot enforce moral considerations.
•    Past consideration does not count as sufficient consideration either.
•    Means that for something to be considered consideration, it needs to be of the substance of things that the law is willing to look at as consideration.
•    Mere detriment is not sufficient consideration – only bargained-for detriment.
•    Non-bargained-for reliance on a promise does not count as sufficient reliance.
•    SO, the law does not look at the adequacy of the consideration, but does require that it be sufficient
o    Means that the law doesn’t care how much consideration is involved, as long as it is consideration.

Past Consideration is no consideration
o    Implies a reference to something that is present.
o    The ‘something’ that is present is the promise.

Eastwood v. Kenyon
o    The husband undoubtedly made the promise, but this is not enough.
o    What did Eastwood exchange to Kenyon?
o    The consideration was rendered to Sarah a long time before her husband made the promise (or likely even knew her).
o    Could simply say that consideration is always a bargained-for detriment, and there was none of that here.
o    Can also say here, more particularly, that past consideration is not consideration.

o    Eastwood v. Kenyon is the case where consideration ceases to be simply ‘a word’.  It is a watershed in giving ‘consideration’ its modern meaning.
o    Goes to having a technical meaning in the law.
o    Para 9, page 267 – Lampleigh v. Brathwait (1615) – “the leading case on the subject…”
o    Distinguishable from Eastwood and Kenya
o    In E. v. K., have 1) Eastwood’s spending, then 2) Kenya’s promise
•    (1) had already been done before (2) came along.
o    In L. v. B., there are 3 acts:
•    Facts:  braithwaite killed someone, and was sentenced to hang.  At the time, those who were sentenced to hang were in fact not hanged.  They were usually pardoned (either conditionally or unconditionally).  Braithwaite told Lampleigh to go to the King and lobby for a pardon.  This is Act (1).
•    Next sig thing that happens (2), is that Lampleigh does attempt to find the court, to lobby it.  It takes him awhile, but he does it – successfully.
•    (3) – Braithwaite promised Lampleigh compensation
•    In this case, the court said that braithwaite’s promise was enforceable.
•    Said that Lampleigh’s actions were consideration.
o    In Eastwood, the judge says that Lampleigh v. Brathwait was distinguishable from a past-consideration scenario.
o    Says that in L. v. B., the consideration was implicit in the original request.
o    (3) is implicit in (1).
o    P 267 – Hobart C.J. says that a mere voluntary courtesy will not have a consideration to uphold a promise.
o    If someone offers someone something as a courtesy for something already done, then the consideration is already in the past, and not-binding.
•    Ex: ‘b’ mows ‘a’s’ lawn.  ‘A’ offers ‘b’ $20 as compensation.
o    If the courtesy were moved at the request of the party who made the promise, then it is binding.  Then, it is not naked (nudem pactum) – but couples itself with the suit before…
o    This means that if, for example, ‘a’ asks ‘b’ to mow their lawn, ‘b’ mows the lawn, and then ‘a’ promises to pay $20 – the promise for $20 can be interpreted as implicit in the original request.
•    The coupling is through an implication.
•    It is implicit that one is not asking for a gratuitity.  This is, of course, much clearer in the realm of business as opposed to friends or neighbours.
o    [Aside:  Remember that juries determine questions of fact, judges determine questions of law.]

p 282.  Guiding Transaction Adjustments
o    a pre-existing legal relationship, that the parties wish to adjust.
o    How is this accomplished in a way that ‘sticks’?
o    Ex: ‘a’ promises ‘b’ to sell his car for $1000.  ‘B’ says yes.
o    ‘A’ regrets selling for too little, so ‘B’ agrees to up the price to $1200.
o    Often times, this would result in an amendment  – cross out $1000, write in $1200, and both parties initial.
o    Had a living contract, and decided to adjust it.
o    The question is whether this perfectly intuitive action is actually legal…
•    Does this actually result in a legal obligation to pay the $1200.
•    No.
•    This is very likely not legal.

Stilk v. Myrick [1809]
•    Napoleonic wars
•    Embargoes on Britain forced them to go far-afield for materials such as timbre.
o    In this case, there is a contract of hire for a vessell.
o    £5/month for the sailors.
o    2 sailors desert at Cronstadt (now Finland, then Russia).
o    The captain promised the other men that, were the places not filled, they would have the deserters’ wages split amongst them.
o    The places proved impossible to fill, and the remaining 9 crew worked the ship back to London from what is now Finland.
o    The captain, upon their return to London, would only pay the £5.
•    Garrow, for the masters of the ship, was one of the first famous lawyers – known for his appeals to juries
o    Garrow argues that if this sort of action were permitted, crews could extort captains to pay them more, or they would allow ships to sink during emergencies, etc.
o    Judges say that the deal is in fact unenforceable because the sailors gave the captain no consideration.
•    At this time, the answer to the question “Why can’t one sell oneself into slavery?” changed.
•    The trad answer was that it was against public policy.
•    Around this time, the answer changed to ‘beause there was no consideration’ – the property of the slave becomes the property of the master.
•    The law was becoming more theoretical.
o    The sailors who remained with the ship were already legally bound to do so.
o    Those who remained were bound by the terms of their original contract to do their utmost to bring the ship safely to its destination.
o    Therefore, the sailors were only promising to do their pre-existent legal duty – this does not make up new consideration for a new bargain.
o    A promise to do that which is already one’s legal duty is not sufficient to form consideration.

Gilbert Steel Ltd. v. University Construction Ltd.
o    The promise being sued on is the promise to pay an increased rate for the steel beams.
o    What consideration did Gilbert Steel give to University Construction Ltd. in exchange for this promise?
o    G.S. alleged that they agreed to give a good price on the second building in exchange for this agreement to pay an increased rate now.
•    2 problems:  i) too vague;  ii) doubt that it was agreed up (even if it was mentioned)
•    Does not work as consideration
o    The delivery of the steel is the obvious consideration.
•    Why is it not?
•    They were already obliged to provide this steel, as part of the original agreement.
•    There is not detriment here.
•    This is why they switched to the “good price” arguument.
o    Pl.’s lawyer argued that the consideration of the oral contract was the mutual abandonment of the prior agreement.
•    Variation scenario – does not work unless one has a mini-contract to change an already existing contract, which in itself requires consideration.
•    If they had decided to call the whole thing off, leaving them (at least for a millisecond) contractless, and entered into a new contract, then that would be binding.
•    Why is it binding to agree to call a contract off?
•    Each side is sustaining the bargained-for detriment of releasing the other side from their obligation.
•    Releasing another from an obligation is a detriment.  Here it is also a bargained-for detriment.
•    It is binding.
•    “Recision + new contract” analysis – this would work.
•    “variation” will never work, unless it is that mini-contract to vary.
o    Recision + new contract is the argument that Mr. Morphy makes here.
•    Wilson J.A. says that this is perfectly legitimate, but that there is no evidence to support the idea that this is what the parties believed they were doing.
•    How does one know whether a particular action is variation or recision?
•    very difficult.
o    This is why the correcting-and-initialing is likely not legal.
o    The editors of our text portray this case as one of the worst decisions ever made.
o    The article on page 297 is by one of the editors – Barry J. Reiter.

Williams v. Roffey Bros and Nicholls (Contractors) Ltd.
o    Very similar case
o    Another contract case.
o    Another case where the project was half-finished.  Promised more to finish the project – how could this be binding?
o    Very rare in English C.A. for all three judges to write (as in Canada).
o    In this case, all three write.
o    Ever rarer for all three to write when they agree – they do in this case.
o    This is something different about this case…
o    Agree that this is enforceable, but are obviously so uncomfortable with enforcing it that they take a stab at explaining it.
o    Each of the three say that they are not overturning Stilk v. Myrick.
o    Say that it still stands for something.
o    Facts:  Roffey Bros have a contract with the municipality whereby they need to have the repairs completed by a certain date.
o    The pl. was a carpenter.  Def. was supposed to make progress payments to the plaintiff.
o    By april 9 1986, Pl. had completed the work on the roof, and first repairs to all 17 flats, and the second repairs on 9 flats.
•    Defendants had made interim payments of £16,200
o    By end of March, pl had run out of money
•    Roffey Bros. approach them and offer more money
•    Williams still went insolvent – had the audacity to sue Roffey Bros.
•    The fault was of Williams for putting in an unrealistic bid.
•    Had Roffey bros. over a barrel, due to the time restrictions on the other contract.
•    Under orthodox analysis, the plaintiffs already had a duty to finish the flats.
•    By promising again to do so for more money, they have insufficient consideration.
o    Where is the consideration that the judges find?
o    What the court has always required is that the pl. promisee exhange a legal detriment to the promiser.
o    In Hamer v. Sidway, in the real world, the kid was benefitting from not smoking, drinking, gambling but in the eyes of the law, giving up ones rights to do something is a detriment.
o    This case acknowledges the diff between a practical benefit and a legal benefit.
o     A practical benefit is not one that the law would normally recognize
o    at the end of this case, the practical benefit turns out to be the legal benefit.

Para 15 – page 303
o    Judge says that Roffy Bros was in fact deriving practical benefits from Williams completing the project at the new price.
o    Keeping Williams on the job should have been to the Roffy Bros benefit, as they did not have to try to find new contractors if that were even possible.
o    Says that the underpining of the rule in Stilk v. Myrick was to save masters from economic duress.
o    P 305 – para 22
o    Propositions
o    The obvious objection to these propositions is that consideration is a bargained-for  detriment
•    What new detriment did Williams sustain?  None.  They are already bound.
•    This judge ignores this.  Says that it is enough that it is a practical benefit to the promisor.
•    Bell thinks the judge is responsible for an enormously significant improvement in the law that is not based on sound theory.
o    Judge #2 – Russell L.J.
o    Says that it does not overturn stilk and myrick.
•    Sure…
o    S v M is not about a promised gift, despite what he says.
o    What he says it stands for bears no relation to what was in the case.  This is a trick.  It is a manipulation of the common law.
o    Judge #3 – Purchas L.J.”
o    Also says not overturning Stilk v. Myrick
•    Takes a different approach – changes the def’n of consideration away from detriment
•    Calls this the modern approach (para 33)
•    Note “Economic Duress”

While this case may be a good decision, it cannot possible be commensurate with contract theory.

For Friday:  finish cases on this page of syllabus

Tilden
•    The P here could have read the contract, but did not
•    How does he win?  He does not win on the theory that he went to trial on, but another.
o    He wins on the court’s reasoning that (¶s 13 & 14) an essential part of the test is whether the other party entered into the contract on the belief that Mr. Clendenning had agreed to the contract.
o    If it obvious to one party that though the other is signing they are not assenting to the contract (because there are parts that they don’t know about), the party cannot invoke the rule from L’estrange.
o    Tilden cannot rely on the parts of the contract which it has no reason to believe Clendenning assented to.
o    Waddens alludes to the doctrine of mistake, though this is not a mistake
•    The judges decide to give judgment that defeats the business party, but tries to assure the business world that the decision is not a significant change.
•    ¶17 – which sections are Clendenning subject to?  Not subject to the clauses which the judges believe the consumer would find surprising.
o    Tilden relying on clauses under which it keeps the $2 deductible, but is not obliged to pay out a claim.
•    Bell calls this a clever decision that is very much still a part of the law.

Hunter Engineering v. Syncrude Canada pp. 871-888.
•    In the wake of Photo Production, there was no extra weight given to “fundamental breach” of a contract, as all breaches were treated equally.
•    If on a true construction, a clause covered an incident, then it covered the incident, period.
o    Court in PP, however, noted that they had a clear conscience because what might be the least fair cases had already been covered by legislation.
o    Only commercial cases at common law remained.
•    SCC in Hunter Engineering (1989) takes a considered look at this idea.
•    The decision in Hunter is a 2-2 decision.  There is no majority / minority decision on this point.
o    On the issue of the place of fundamental breach in the modern law, there is a split.
o    everyone typically identifies Dickson J’s decision as the majority, but this is not so.
•    The clauses here are not totally unreasonable.  The purchaser, however, wishes to evade them
•    argument that the breach here is of a fundamental character, and so the limitation of liability clauses do not apply…
•    2 judges here like Photo Production, and would incorporate the decision into Canadian law.
o    ¶17 – Dickson J. says that fundamental breach should be an issue of contract contraction, and that the court should not disturb the bargain that the parties have struck.  He and La Forest go with the true construction model.
•    True construction – simply means that if the clause in question, given various tests of interpretation, still covers (on a fair reading) what happened, then it does cover what happened, and the parties will be left with the contract that they made.
•    This is a business-business case, but Dickson and La Forest do not make their decision turn on this.  They do not distinguish.
•    The effect of this would be to abolish the doctrine of fundamental breach in Canada.
•    Get hints of something else:  ¶17 (last sentence) – ‘the courts should not disturb the bargain that the parties have struck, and I am inclined to replace the doctrine of fundamental breach with a rule that holds the parties to the terms of their agreement, provided the agreement is not unconscionable.’
o    ¶28 – unconscionability again.  “only where the contract is unconscionable, as might arise from situations of unequal bargaining power between the parties, should the courts interfere with agreements the parties have freely concluded.”
o    doctrine of unconscionability – judges can ignore things they don’t like.  Trad. gets a very narrow construction.  Is confined to the narrowest circumstances.  usually, only legit. terrain is seen as inequality bargaining power.
•    if the bargaining power was grossly lopsided, the contract might be struck down by the courts.
•    Wilson J. and L’Heureux-Dubé J.
o    presents more than Dickson, and in a less than coherent order.
o    Says that she agrees with Dickson that fundamental breach as invented by Denning in the Car Sales (?) case and promoted by him in subsequent cases, that it has its problems.
•    agrees that not all the problem clauses in contracts are exemption clauses, but that the doctrine of fundamental breach deals only with limit. of liability or exemption clauses.
•    agrees that not all exemption clauses are unfair, but that the doc. of fund. breach means that if there is a fundamental breach, the exemption clause disappears altogether.
•    So agrees that there are problems.  Goes too far one way, not far enough in another.  But does not think we should go so far as to abolish it.
o    ¶42-43 – goes to trouble of pointing out that while the HoL in Photo Production could reach its decision with a clear conscience because the consumer cases were protected by legis., points out that there is no such legislation in Canada.
•    Wilson qualifies this ¶43 that many of the provs. had already taken care of limitation of liability clauses (contracts fall under prov. jurisdiction)
•    But doesn’t think that this is a completely adequate solution.  Still sees a role for the courts to protect parties who have been victims of some fundamental breaches.
o    ¶43 – ‘in affirming the legitimate role for the courts’; ¶47 “policy matters”; ¶? “residual powers” for courts.
•    saying that courts have a legit. role in invoking its residual power in contracts.  May be cases where freedom of contracts has gone too far, and that there may be a role of the court (even outside the doctrine of unconscionability) to remake a contract.
•    Says that she does not agree with Lord Denning’s approach.  The Doc. of Fund. Breach that she is about to try to save is not as it was articulated by Denning.
o    Denning’s said that if you have a fund. breach (going to the root of the contract; deprives the violated party of the whole benefit of the contract), there is an automatic consequence.  A rule of law kicks in to specify this consequence – that the limitation of liability clause disappears, meaning that the contract breaker can no longer shield themselves behind it from liability.
o    ¶33 – sentence 2 – quite wrong.  “One held that there was a rule of law that a fundamental breach brought a contract to an end…” wrong.  The contract did not come to an end – the limitation of liability clause came to an end.  That is all.
•    Says that her articulation of the doctrine of fundamental breach would be more nuanced:
o    that the courts would still have to classify a breach as fundamental or not, but that it just leads the court to ask a second question:
•    Would allowing the breaching party that has committed the fund. breach, to shield itself, lead to a result that was unfair or unreasonable?
•    Whereas Denning, having once classified a breach as fundamental, would immediately remove the lim. of liability clause, Wilson would say that once this classification is made, the next question is then asked.
•    would not, then, be looking at the moment of formation, but instead the result of the contract – an unfair or unreasonable consequence for a victim of a breach.
o    Says that even if there was a fundamental breach here, there is nothing so unfair as to invoke the doctrine.
•    Makes a reply to Dickson and his flirting with the doctrine of unconscionability:
o    ¶47 “Where there is no inequality of bargaining power, the courts should, as a gen. rule, give effect to the bargain freely negotiated by the parties”
•    ¶48 “To dispense with the doctrine of fundamental breach and rely solely on the principle of unconscionability, as has been suggested by some commentators, would, in my view, require an extension of the principle of unconscionability beyond its traditional bounds of inequality of bargaining power.”
o    The doctrine of unconscionability has trad. not been a result-based analysis, but instead a contract formation-based analysis.
o    questions how the court could say that a validly formed contract was unconscionable…
•    so cannot be a subs. for the doctr. of fund. breach, UNLESS admit to changing the doctr. of unconscionability.
•    Says that even if she could do that, she wouldn’t, because she finds this doctrine even more vague than the doctr. of fundamental breach.

•    ¶52 – Courts over the past 50 years have flirted with the idea that exclusion of liability clauses are worse than limitation of liability clauses.  This is a distinction that is difficult to make.  Limitation of liab. clauses can be so far-reaching as to practically equate them to exclusion of liability clauses.  Wilson J. here points out the same thing.

Conclusion:
The doctrine of fund. breach took hold in Canada, but here we have 2 judges who would abolish it, and 2 who would save it, but prune it.  (5th judge here stayed out of it).
Editors of the case book (note 2, 3, & 6) give us three cases where (note 7 as well?) a good idea can be formed of how lower court judges have handled this 2-2 decision of the SCC.  In effect, the judges seem to be taking what Dickson and Wilson said and synthesized them?  Seized on “unconscionable” in Dickson’s and “unfair and unreasonable” in Wilson’s, and began treating them as the same thing.
Note 2, page 885 – equates the two – says the diff is “unlikely to be large”.
The SCC has touched on fundamental breach in a # of cases since 1989.  It does rather seem that fund. breach is alive and well in Canada – perhaps saved by Wilson J. & L’Heureux-Dubé, but ppl still do use Dickson’s word, “Unconscionability”.
Fundamental Breach:  Dead in England, still kicking in Canada.  Party on, Fundamental Breach.  Party on.

Consumer Product Warranty and Liability Act (NB) http://www.gnb.ca/0062/acts/acts/c%2D18%2D1.htm ss 1, 2, 4, 5, 7, 23-26
•    Result of Ralph Nader’s critiques of the auto industry in the U.S. in the 60s making their way to the legislatures by the late 70s.
•    does not apply to services, except if goods are sold at the same time.
•    2(3)This Act applies notwithstanding any agreement, notice, disclaimer, waiver, acknowledgement or other thing to the contrary.
o    Seems to say that the consumer cannot contract themselves out of the Act.
o    Do have the  Sale of Goods Act, but can contract oneself out its benefit (without even realizing it).

Read the rest of the sections of the Act.  New Syllabus on TWEN.  Meeting tomorrow – reading assignment for tomorrow by email.

Exception Clauses p. 838
•    Warranty, in its technical meaning, is a sub-contract
•    It has a technical meaning
o    Close reading; strict construction
•    Wallis v. Pratt – “warranty” did not apply to exclude the implied statutory “condition” of the Sale of Goods Act that products must correspond to their description.
o    ¶5 - exclusion of “any warranty of condition” does not avail a seller if there has been a ‘negligent misstatement’
o    ¶6 – in the absesnce of an explicit mention of negligence, a judge is likely to find that exemption cluases do not exclude liability for negligence.
•    Judges believe that it should be very difficult to exclude oneself from the possibility of negligence, and that it must at the very least be explicit.
•    “The rule in Canada Steamships” – adopted this extreme example of reading down.  If an exemption clause could be given a meaning but the meaning was not broad enough to extend to negligence, then it does not extend to negligence.
•    If the exemption clause could refer to something other than negligence, then it is deemed to refer to that thing.
•    P. 839 – Inconsistency.
o    A number of ways that judges tackel ‘internal inconsistency’
•    To say that the provision that the parties agreed on explicitly takes precedence over some provision that is simply there as part of a form-document.
o    The passage on 839 is accurate, but misleadingly simplistic.

Parker v. Southeast Railway
•    A case that refers to the imp. of railway
•    Bottom Page 849 – caput lupinum – “Having the head of the wolf”.  Anyone might legally ‘kill’ them.
•    Railway companies were often the targets of juries, as insurance companies are today.
•    Railway takes the pos. that the passenger signed away their rights.
o    There was a notice on the wall of the cloak-room
o    There were conditions written on the ticket
•    Page 847 – “see back”; several clauses relating to articles left by passengers – “The company will not be resonsible for any package exceeding the value of £10.”
•    Bag could not be found.  Claimed that his bag was worth £24 10s.
•    Mellish L.J. – “In and ordinary case, where an action is brought on a written agreement which is signed by the defendant, the agreement is proved by proving his signature, and, in the absesnce of fraud, it si wholly immaterial that he has not read the agreement and does not know its content …in the case [where the agreement has been reduced to writing so that the writing is the sole evidence of the agreement without signing it]there must be evidence of the agreement itself to prove that the defendant assented to it.”
•    P said that he knew there was writing on the ticket, but not what the writing was.  Said thought it may have been a receipt ¶3.
o    No question that had he read the writing, he would have been bound.
•    Contract law presumes that people, if given something to read, will read it.
•    Bramwell L.J.
o    For this judge, the question is whether the person who does not read the conditions in a better condition than he who does.
•    Bottom 848 – Mellish’s famous repropositions:
o    ¶3 – 3 propositions.  I am of the opionion there fore that the proper direction to leave to the jury in these cases is:
•    1)  That if the person receiving the ticket did not see or know that there was writing on the ticket, he is not bound by the conditions;
•    2)  that if he knew there was writing, and knew or believed that the writing contained conditions, then he is bound by the conditions;
•    [should this be subject to the condition that the writing be relevant and ‘usual’ to the circumstances?; that anything out of the ordinary would be brought specifically to the attention of the purchaser?]
•    3)  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.
•    [Would the purchaser be bound to every single condition on the ticket, or just the not-unusual contractual provisions?  Could they insert provisions to do with seizing first-born children and have done with it?]
•    page 849 – Bramwell L.J.
o    Bramwell is skeptical
o    Proposes that putting it into his hand should be no different than saying “read that” by the porter.  Asks what more the railway company could have done
o    Page 850 – qualifies what he says – says that the market has the answer.  If railway companies (or anyone else) began putting unreasonably terms in their contracts, then the public would hear of it and begin using alternative [forms of transportation, for example].
o    “What if there was ome unreasonable condition… Would the depositor be bound?  I might content myself by asking:  Would be be, if here were told ‘our conditions are on this ticket,’ and he did not read them.  In my judgment, he would not be bound in either case.  I think there is an implied understanding that there is no condition unreasonable to the  knowledge of the party tendering the document and not insisting on its being read – no condition not relevant to the atter in hand.”
•    Important qualification regarding ‘unreasonable conditions’

Note 5 page 851
•    J. Spurling Ltd. v. Bradshaw
o    Post-war case involving 8 casks of orange juice.
o    Most of the OJ disappeared while being stored in a bailee warehouse.
o    Decision of Denning L.
•    “I agree that the more unreasonable a clause is, the greater the notice which must be given of it.  Some clauses which I have seen would need t be printed in red ink on the face of the docuent with a read hand pointing to it before the notice could be held to be sufficient.”
•    “Next it was said that the landing account and invoice were issued after goods had been received and could not therefre be part of the cotract of bailment:  but the defendant admitted that he had receive many landing accounts before.  True, he had not troubled to read them.  True, he had not troubled to read them.  On receiving this account, he took no objection to it, left the goods there, and went on paying the warehouse rent for months afterwards.  It seems to be that by the course of business and conduct of the parties, these conditions were part of the contrat.  In these circumstances, the plaintiffs were entitled to rely on this exempting condition…”

read p 851-852

Thornton v. Shoe Lane Parking Ltd. – page 857
•    sign at entrance:  “All cars parked at ownder’s risk”.
•    Then drive up a ramp and press a button for a ticket.
•    Denning L. finds that the ramp is the offer, and driving up the ramp and pressing the button is the acceptance.
•    Even if the ticker were part of the conditions, how could one be bound by conditions that one could not see until after ‘acceptance’?
•    Same as the conditions posted inside the garage.
•    ¶2 – offer accepted when the P drove up the entrance and had the ticket thrust at him by the weight-sensor.  The contract was the concluded, and could not be altered by any words printed on the ticket.
•    ¶3 - Then gives analogy whereby the ticket machine is a booking clerk ‘in disguise’
o    goes back to 3 questions pose by Mellish L.J. in Parker
o    ¶4 – counsel for the ds admitted that the Ds did not do what was reasonably sufficient to give the P notice of the exempting condition.
o    “I do not pause to enquire whether the exempting condition is void for unreasonableness.”
•    BE CAREFUL.  There is no jurisprudence that allows courts to say that an exempting clause was void for unreasonableness.  Denning L.J. was likely trying to begin this jurisprudence, but it didn’t take.
•    Denning determines that the P was not bound by the exempting condition as there was no evi. that he knew of it.

Page 860 – Signed Contracts
•    “When a documet containing contractual terms is signed, then, in the absense of fraud, or I will add, misrepresentation, the party signing is bound, as it is wholly immaterial whether he has read the codument or not.”
o    Ie:  You signed, you’re bound.
•    Courts often want to save people from their own folly.
o    This causes tension.

For next day:  Tilden, Photo Production.