Chapter 9The terms of business contractsThis general rule will not apply where the signer can
plead non est factum(see Chapter 7 ) or if the other
party has misrepresented the terms of the agreement.
The person seeking to rely on the exemption clause
must show that reasonable steps have been taken to
give notice of the clause to the other contracting party.
What amounts to reasonably sufficient notice will vary
according to the nature of the clause. As Denning LJ
commented in Spurlingv Bradshaw(1956) (see later):287Curtisv Chemical Cleaning and Dyeing
Co(1951)
Mrs Curtis took a wedding dress to be cleaned by the
defendants. She signed a piece of paper headed ‘Receipt’,
after being told by the assistant that it exempted the
cleaners from liability for damage to beads and sequins.
The ‘Receipt’, however, contained a clause excluding
liability ‘for any damage howsoever arising’. When the
dress was returned, it was badly stained. It was held that
the cleaners could not escape liability for damage to the
material of the dress by relying on the exemption clause
because its scope had been misrepresented by the
defendant’s assistant.2 Unsigned documents.The exemption clause may be
contained in an unsigned document such as a ticket or
a notice. The clause will form part of the contract only
if two conditions are met. First, the document must be
regarded by a reasonable man as contractual in nature
and, as such, likely to contain exemption clauses.
Chapelton v Barry Urban District
Council(1940)
Mr Chapelton hired two deck chairs for three hours from
the defendant council. He received two tickets which
he put into his pocket unread. Each ticket contained a
clause exempting the defendant from liability for ‘any
accident or damage arising from the hire of the chair’.
Mr Chapelton was injured when the chair he sat on
collapsed. He successfully sued the council. The Court
of Appeal held that a reasonable man would assume that
the ticket was a mere receipt and not a contractual docu-
ment which might contain conditions. The defendant
had not succeeded in incorporating the exemption into
its contract with Mr Chapelton.Notice of the exemption clause must have been given
before the contract was made or at the time the contract
was made. Attempts to give notice after the contract has
been concluded will be ineffective.
Olleyv Marlborough Court Ltd(1949)Mr and Mrs Olley booked in for a week’s stay at the de-
fendants’ hotel. There was a notice in the bedroom which
stated that ‘the proprietors will not hold themselves
responsible for articles lost or stolen unless handed to
the manageress for safe custody’. A stranger gained
access to the Olleys’ room and stole Mrs Olley’s furs.
The Court of Appeal held that the defendants were liable.
The Olleys saw the notice only after the contract had
been concluded at the reception desk. The exclusion
clause could not protect the defendants because it had
not been incorporated into the contract with the Olleys.Thorntonv Shoe Lane Parking Ltd(1971)Mr Thornton decided to park his car in the defendant’s
car park. There was a notice at the entrance which
stated: ‘All cars parked at owner’s risk.’ As Mr Thornton
drove into the car park, a light changed from red to
green and he took a ticket from an automatic machine.
He noticed that there was some writing on the ticket but
he did not read it. The ticket stated that it was ‘issued
subject to the conditions of issue as displayed on the
premises’. The conditions which were displayed inside
the car park purported to exempt the defendant for not
only damage to vehicles but also injury to customers.
When Mr Thornton returned to the car park to collect his
car, he was involved in an accident and he suffered per-
sonal injury partly as a result of the defendant’s neglig-
ence. The Court of Appeal held that the defendant
could not rely on the exemption clause displayed inside
the car park because it had been introduced after the
contract was formed. The contract was concluded when
the lights changed from red to green and the mach-
ine dispensed a ticket. It is important to note that Mr
Thornton was using the car park for the first time. If he
had visited the car park before, the defendant may have
been able to argue that the notice inside the car park had
been incorporated into the contract by a previous source
of dealings (see later).