CHAR_A01.PDF, page 1-18 @ Normalize ( CHAR_A01.QXD )

Previous dealings

It can be seen from the above cases that the courts really do try to take a
reasonable point of view, and do their utmost to protect the consumer. This
does not mean, however, that they will not take an objective stance, and
they may consider that sufficient notice has been given if it can be shown
that there was a ‘course of dealing’ between the parties.

However, if a term is to be incorporated into a contract through a course of
dealing, there must be a consistent pattern of behaviour, as the following
case shows.

If the parties are both involved in the same trade, they may therefore be
assumed to have knowledge of the normal trade terms.

Incorporation of terms 99

date stamp which the booking-clerk had put there to validate the ticket.

It was held that as these words could not be read they could not form

part of the contract.

Hollier v Rambler Motors (AMC) Ltd (1972)

The plaintiff left his car at the defendant’s garage for service, but there

was a fire at the garage and the car was destroyed. The defendant

claimed exemption from paying damages, relying on a notice inside the

garage. However, it was established that the plaintiff only went to the

garage infrequently so he had not been regular enough to be deemed to

have read the terms.

McCutcheon v David MacBrayne Ltd (1964)

The plaintiff often used the defendant’s ferry service, sometimes going

into an office for a ticket, sometimes paying outside or on the ferry. On

this occasion the ferry sank, and the defendant claimed exemption from

liability because of a term in his notice of terms in the office. It was held

that the pattern of behaviour was too inconsistent to form a course of

dealing, and the defendant was liable for the cost of replacing the car.

How might a ferry operator, or any other person in business, make provision

for this kind of event?