The term had not in this case been specifically pointed out, and Mr
Thornton was therefore successful in his claim.
Lord Denning pointed out in Thornton that the offending clause was in
‘regrettably small print’, and referred to a statement from Spurling v
Bradshaw (1956), where he said that a particularly wide or unusual clause
may need bringing to someone’s notice more explicitly, e.g. by being
printed in red ink and with a red hand pointing to it.
Written contracts
The general principle is that if two parties have taken the trouble to put their
contract into writing, they intend that document to be binding and to form
the whole of their agreement, without oral additions or amendments. Two
‘rules’ have been formed over this, although it will be seen that there are
exceptions to both of them.
Incorporation of terms 101Where could the car park owners have sited the term for it to have
been incorporated?The notice was sited inside the car park. The contract with Mr
Thornton was formed at the entrance, so he would not have seen the
notice until after he formed the contract.
As the exemption clause was very wide, including injury as well as
damage to property, it was said that it should have been brought to Mr
Thornton’s attention in ‘the most explicit way’. In fact, the exemption
clause was amongst other terms and not likely to be seen.Interfoto v Stiletto (1988)
The defendant borrowed photographic slides from the plaintiff ’s
library,but was late returning them.There was a clause in the contract
requiring £5 per slide per day for overdue slides, and this amounted to
over £3,700. It was held that as this was a particularly onerous clause
the plaintiff should have done something positive to point it out to the
defendant. Here there was clearly some lateness on the part of the
defendant, so the court ordered payment of £3.50 per slide per week on
a quantum meruit (as much as was deserved).