259:. I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient. The clause in this case, however, in my judgment, does not call for such exceptional treatment, especially when it is construed, as it should be, subject to the proviso that it only applies when the warehouseman is carrying out his contract and not when he is deviating from it or breaking it in a radical respect. So construed, the Judge was, I think, entitled to find that sufficient notice was given. It is to be noticed that the landing account on its face bold Mr. Bradshaw that the goods would be insured if he gave instructions; otherwise they were not insured. The invoice, on its face, told him they were warehoused "at owner's risk." The printed conditions, when read subject to the proviso which I have mentioned, added little or nothing to those explicit statements taken together.
197:(1877) 2 C.P.D. 416, at p. 428; but I do not think this clause is to be construed as widely as that. These exempting clauses are nowadays all held to be subject to the overriding proviso that they only avail to exempt a party when he is carrying out his contract, not when he is deviating from it or is guilty of a breach which goes to the root of it. Just as a party who is guilty of a radical breach is disentitled from insisting on the further performance by the other, so also he is disentitled from relying on an exempting clause. For instance, if a carrier by land agrees to collect goods and deliver them forthwith, and in breach of that contract he leaves them unattended for an hour instead of carrying them to their destination, with the result that they are stolen, he is disentitled from relying on the exempting clause. That was decided in 1944 by this Court in the case of
223:(1884) 9 App. Cas. 434, at p. 443. I would not like to say, however, that negligence can never go to the root of the contract. If a warehouseman were to handle the goods so roughly as to warrant the inference that he was reckless and indifferent to their safety, he would, I think, be guilty of a breach going to the root of the contract and could not rely on the exempting clause. He cannot be allowed to escape from his obligation by saying to himself: "I am not going to trouble about these goods because I am covered by an exempting clause."
179:
28:
213:
without excuse to somebody else, he is guilty of a breach which goes to the root of the contract and he cannot rely on the exempting clause. But if he should happen to damage them by some momentary piece of inadvertence, then he is able to rely on the exempting clause: because negligence by itself, without more, is not a breach which goes to the root of the contract (see
250:
But, where the only charge made in the pleadings—or the only reasonable inference on the facts—is that the damage was due to negligence and nothing more, then the bailee can rely on the exempting clause without more ado. That was, I think, the case here. As I read the pleadings, and the way the case
230:
In the case of non-delivery, for instance, all he need plead is the contract and a failure to deliver on demand. That puts on the bailee the burden of proving either loss without his fault—which, of course, would be a complete answer at common law—or, if it was due to his fault, it was a fault from
186:
If the clause is taken literally, it is wide enough to exempt the company from any obligation to redeliver the goods. It would mean that if the managing director sold the orange juice to somebody else, or used it up for the company's purposes, maybe by mistake or even dishonestly, the company would
212:
The essence of the contract by a warehouseman is that he will store the goods in the contractual place and deliver them on demand to the bailor or his order. If he stores them in a different place, or if he consumes or destroys them instead of storing them, or if he sells them, or delivers them
262:
Next it was said that the landing account and invoice were issued after the goods had been received and could not therefore be part of the contract of bailment: but Mr. Bradshaw admitted that he had received many landing accounts before. True he had not troubled to read them. On receiving this
559:
Denning's "red hand" phrasing—and the idea that particularly onerous clauses (including but not limited to exclusion clauses) need sufficient notice if not incorporated by signature (or other means) has been widely referred to in a number of significant
English cases subsequently including
187:
not be liable; or if some discontented storeman took the bung out of a barrel and let the orange juice escape, the company still would not be liable. If the clause went to those lengths, it would be very unreasonable and might for that reason be invalid on the lines which
120:
I quite 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 to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be
226:
Another thing to remember about these exempting clauses is that in the ordinary way the burden is on the bailee to bring himself within the exception. A bailor, by pleading and presenting his case properly, can always put on the bailee the burden of proof.
246:
Likewise with goods that are returned by the bailee in a damaged condition, the burden is on him to show that the damage was done without his fault: or that, if fault there was, it was excused by the exempting clause. Nothing else will suffice.
263:
account, he took no objection to it, left the goods there, and went on paying the warehouse rent for months afterwards. It seems to me that by the course of business and conduct of the parties, these conditions were part of the contract.
254:
This brings me to the question whether this clause was part of the contract. Mr. Sofer urged us to hold that the warehousemen did not do what was reasonably sufficient to give notice of the conditions within
266:
In these circumstances, the warehousemen were entitled to rely on this exempting condition. I think, therefore, that the counterclaim was properly dismissed, and this appeal also should be dismissed.
205:
in the same volume at p. 44; or if a bailee by mistake sells the goods or stores them in the wrong place, he is not covered by the exempting clause: see the decision of Mr. Justice McNair in
251:
was put to the Judge, Mr. Bradshaw was complaining of negligence and nothing more. The clause therefore avails to exempt the warehousemen, provided always that it was part of the contract.
138:. When the barrels were collected, they were damaged. When Bradshaw refused to pay Spurling Ltd, the company sued for the cost. Bradshaw counterclaimed for damages for breach of an
568:
219:
532:
603:
MacDonald, Elizabeth (1999). "The
Emperor's Old Clauses: Unincorporated Clauses, Misleading Terms and the Unfair Terms in Consumer Contracts Regulations".
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134:. He asked Spurling Ltd to store them. In the contract was the "London lighterage clause" which exempted warehousemen from liability due to their
170:
158:
154:
83:
79:
488:
666:
410:
193:
291:
38:
188:
651:
562:
332:
577:
544:
504:
308:
75:
681:
346:
661:
372:
182:
Lord
Denning's Red Hand Rule in action: A red hand points to an unfair contract term, printed in red ink.
518:
396:
150:
676:
462:
284:
656:
448:
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held that although the warehouse employees were negligent, the clause effectively exempted them.
320:
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precluding an exclusion of liability was rejected by the House of Lords some years later in
474:
277:
105:
101:
8:
625:
217:
2 Lloyd's Rep. 82, at p. 88), any more than non-payment by itself is such a breach: see
336:
215:
Swan, Hunter, and Wigham
Richardson, Ltd. v. France Fenwick Tyne and Wear Company, Ltd.
165:
130:
J Spurling Ltd had a warehouse in East London. Mr Andrew
Bradshaw had seven barrels of
97:
522:
350:
508:
494:
452:
400:
164:
Denning LJ's judgment went as follows. Note that his reference to the concept of a
580:
provided a statutory relief from unfair terms), but it was cited with approval in
478:
414:
384:
424:
360:
645:
572:. The Court of Appeal questioned the wide applicability of it in the case of
202:
436:
139:
131:
269:
135:
113:
178:
109:
220:
Mersey Steel and Iron
Company, Ltd. v. Naylor, Benzon & Co.
569:
Interfoto
Picture Library Ltd v Stiletto Visual Programmes Ltd
27:
201:(1944) 60 T.L.R. 253, expressly approving the judgment of
239:
1 Q.B. 291. I do not think that the Court of Appeal in
534:
Bates & Others v Post Office Ltd (Judgment No 3)
142:of a contract of bailment to take reasonable care.
243:K.B. 189, had the burden of proof in mind at all.
231:which he is excused by the exempting clause: see
643:
199:Bontex Knitting Works, Ltd. v. St. John's Garage
171:Photo Production Ltd v Securicor Transport Ltd
285:
598:
596:
116:'s "red hand rule" comment, where he said,
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278:
26:
672:Court of Appeal (England and Wales) cases
602:
593:
490:Equitable Life Assurance Society v Hyman
299:
233:Cunard Steamship Company, Ltd. v Buerger
177:
582:Lacey's Footwear v Bowler International
411:HIH Casualty Ltd v Chase Manhattan Bank
194:Parker v. South Eastern Railway Company
644:
257:Parker v South Eastern Railway Company
273:
235:A.C. 1; (1926) 25 Ll.L.Rep. 215, and
611:(2): 422–424 – via HeinOnline.
13:
241:Alderslade v. Hendon Laundry, Ltd.
14:
693:
622:AEG (UK) Ltd v Logic Resource Ltd
574:AEG (UK) Ltd v Logic Resource Ltd
563:Thornton v Shoe Lane Parking Ltd
333:Thornton v Shoe Lane Parking Ltd
667:English incorporation case law
630:
615:
578:Unfair Contract Terms Act 1977
108:case on exclusion clauses and
1:
545:Terms in English contract law
505:AG of Belize v Belize Telecom
237:Woolmer v. Delmer Price, Ltd.
207:Woolmer v. Delmer Price, Ltd.
554:
373:Hartog v Colin & Shields
347:Interfoto Ltd v Stiletto Ltd
7:
145:
10:
698:
626:[1995] EWCA Civ 19
519:Oscar Chess Ltd v Williams
397:ICS Ltd v West Bromwich BS
309:L'Estrange v F Graucob Ltd
652:English property case law
542:
529:
515:
501:
485:
471:
463:Johnstone v Bloomsbury HA
459:
445:
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407:
393:
381:
369:
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343:
337:[1970] EWCA Civ 2
329:
317:
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98:[1956] EWCA Civ 3
93:J Spurling Ltd v Bradshaw
71:
66:
52:
44:
34:
25:
21:J Spurling Ltd v Bradshaw
20:
587:
125:
449:Mahmud and Malik v BCCI
112:. It is best known for
268:
183:
123:
605:Cambridge Law Journal
321:Chapelton v Barry UDC
181:
176:
118:
475:Liverpool CC v Irwin
300:Contract terms cases
106:English property law
102:English contract law
682:1956 in British law
56:EWCA Civ 3 (Bailii)
662:Lord Denning cases
428:(1766) 3 Burr 1905
364:(1871) LR 6 QB 597
184:
166:fundamental breach
636:2 Lloyd's Rep 369
551:
550:
203:Mr. Justice Lewis
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62:1 Lloyd's Rep 392
689:
677:1956 in case law
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576:(in part as the
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67:Court membership
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39:Court of Appeal
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72:Judges sitting
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191:indicated in
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48:26 March 1956
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29:
24:
19:
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531:
517:
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487:
473:
466:2 All ER 293
461:
447:
437:The Moorcock
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383:
376:3 All ER 566
371:
359:
345:
331:
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307:
265:
261:
256:
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245:
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236:
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209:1 Q.B. 291.
206:
198:
192:
185:
169:
163:
149:
140:implied term
132:orange juice
129:
119:
92:
91:
90:
60:2 All ER 121
15:
121:sufficient.
646:Categories
523:EWCA Civ 5
351:EWCA Civ 6
151:Denning LJ
136:negligence
114:Denning LJ
76:Denning LJ
555:Reception
159:Parker LJ
155:Morris LJ
84:Parker LJ
80:Morris LJ
58:1 WLR 461
53:Citations
324:1 KB 532
312:2 KB 394
174:AC 827.
146:Judgment
110:bailment
509:UKPC 10
495:UKHL 39
453:UKHL 23
401:UKHL 28
45:Decided
566:, and
479:UKHL 1
415:UKHL 6
388:QB 644
100:is an
624:
588:Notes
126:Facts
96:
35:Court
157:and
104:and
648::
609:58
607:.
595:^
584:.
153:,
82:,
78:,
293:e
286:t
279:v
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