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Published online by Cambridge University Press: 16 January 2009
One hundred years have passed since Mr. Parker went to collect his bag from the cloakroom at Charing Cross station, found that the bag was missing and that the cloakroom ticket bore a clause limiting the liability of the railway company to £10. The resultant litigation was neither the first nor the last of what have become known as the ticket cases, but the judgment of Mellish L.J. in the Court of Appeal in Parker v. S.E.Ry. has become the point from which most later judgments begin. Whether this centenary is a cause for celebrations or for shudders is a question that the reader must answer himself. This article seeks to trace and delineate the “embellishment and gloss” that have been added to the principles set out in Parker v. S.E. Ry. over the last century.
1 (1877) 2 C.P.D. 416.
2 Atiyah, Introduction to The Law of Contract (2nd ed.), p. 128.
3 Signed contracts are beyond the scope of this paper, except where the principles are relevant to unsigned contractual documents; on contracts of adhesion in general see, for instance, Sales, “Standard Form Contracts” (1953) 16 M.L.R. 318; Grunfeld, “Reform in the Law of Contract” (1961) 24 M.L.R. 62; Lenhoff, “Contracts of Adhesion and the Freedom of Contract” (1962) 36 Tulane L.R. 481; Wilson, “Freedom of Contract and Adhesion Contracts” (1965) 14 I.C.L.Q. 172.
4 See, for instance, Cooke v. T. Wilson, Sons & Co. Ltd. (1915) 85 L.J.K.B. 888, 896Google Scholar; Nunan v. Southern Ry. [1923] 2 K.B. 703, 705Google Scholar; Cockerton v. Naviera Aznar S.A. [1960] 2 Lloyd's Rep. 450, 458.Google Scholar
5 Law of Contract (23rd ed.), p. 146; (24th ed.), p. 155.
6 Parker v. S.E.Ry. (1877) 2 C.P.D. 416, 423.
7 Richardson Spence & Co. v. Rowntree [1894] A.C. 217, 219.
8 See, for instance, Marriott v. Yeoward Bros. [1909] 2 K.B. 987Google Scholar; Cooke v. T. Wilson, Sons & Co. Ltd. (1915) 85 L.J.K.B. 888Google Scholar; Hood v. Anchor Line Ltd. [1918]Google Scholar A.C. 837; Hearn v. Southern Ry. (1925) 41 T.L.R. 305Google Scholar; McCutcheon v. David MacBrayne Ltd. [1964] 1 W.L.R. 125.Google Scholar
9 Taylor v. Glasgow Corp., 1952Google Scholar S.C. 440, 447.
10 He may yet escape them by calling in the aid of rules of construction, in particular, the doctrine of fundamental breach; this is beyond the scope of this paper. What he cannot do is contend successfully that he has not assented to the terms at all.
11 (1877) 2 C.P.D. 416, 421.
12 (1876) 1 Q.B.D. 515.
13 (1875) L.R. 2 Sc. & Div. 470. See also Richardson, Spence & Co. v. Rowntree [1894] A.C. 217; Hooper v. Furness Ry. (1907) 23 T.L.R. 451Google Scholar; Skrine v. Gould (1912) 29 T.L.R. 19Google Scholar; Walls v. Centaur Co. Ltd. (1921) 126 L.T. 242Google Scholar; Henson v. L.N.E.Ry. [1946] 1 All E.R. 653Google Scholar; Taylor v. Glasgow Corp., 1952Google Scholar S.C. 440; Chapelton v. Barry U.D.C. [1940] 1 K.B. 532Google Scholar; McCutcheon v. David MacBrayne Ltd. [1964] 1 W.L.R. 125Google Scholar; Burnett v. Westminster Bank Ltd. [1966] 1 Q.B. 742.Google Scholar
14 Note that the decision would probably have been different today, on the ground that people who travel by sea are taken to know, as a matter of general knowledge, that terms exist; see below II. 1.
15 See, for instance, Harling v. Eddy [1951] 2 K.B. 739, 748Google Scholar; Walls v. Centaur Co. Ltd. (1922) 126 L.T. 242, 245.Google Scholar
16 Cheshire and Fifoot, Law of Contract (8th ed.), p. 125; Wilson, p. 177.
17 Treitel, The Law of Contract (4th ed.), p. 138. See also Anson, Law of Contract (24th ed.), p. 156. Sutton and Shannon on Contracts (7th ed.), p. 107; Wilson, Principles of the Law of Contract, p. 247.
18 Thompson v. L.M.S.Ry. [1930] 1 K.B. 41.
19 At p. 46; see below III. l.
20 1930 S.C. 989.
21 At p. 1012. See also Highland Ry. v. Menzies (1878) 5 R. 887, 899.
22 Taylor v. Glasgow Corp., 1952 S.C. 440, 448.Google Scholar C.F.
23 (1877) 2 C.P.D. 416. Also Taylor v. Glasgow Corp., 1952 S.C. 440, 448.Google Scholar
24 [1921] 2 K.B. 426.
25 [1951] 2 K.B. 882.
26 At p. 886. Cf. the similar view but doubtful reasoning in Van Toll v. S.E.Ry. (1862) 12 C.B.(n.s.) 76, 81–83.
27 Henderson v. Stevenson, L.R. 2 Sc. & Div. 470, 475, 477, 481. Also Richardson Spence & Co. v. Rowntree [1894] A.C. 217.
28 [1918] A.C. 837. Also Acton v. Castle Mail Packets Co. Ltd. (1895) 73 L.T. 158, 159–160.
29 At p. 845; see also p. 846; p. 849; Lord Finlay L.C. concurred on the ground that the defendants had actively given sufficient notice of the terms to the plaintiff. Cf. Cooke v. T. Wilson, Sons & Co. Ltd. (1915) 85 L.J.K.B. 888Google Scholar where the plaintiff admitted that she knew that contracts to travel by sea contained terms.
30 Essery v. General S.N. Co. Ltd. (1937) 58 Ll.L.Rep. 307Google Scholar; cf. the earlier decision in Hooper v. Furness Ry. (1907) 23 T.L.R. 451Google Scholar, concerning an evening cruise from Fleetwood, in which it was not apparently argued that there might be general knowledge of terms and in which the judge would not disturb the finding of the jury that the plaintiff did not have sufficient notice of the terms.
31 [1960] 2 Lloyd's Rep. 450.
32 Cf. the position in the United States: in The Majestic, 166 U.S. 375 (1897), the Supreme Court took a position influenced by and comparable to that of the House of Lords in Richardson v. Rowntree, supra. The Supreme Court has not pronounced on the point since then. The decisions of lower courts were recently reviewed by the Court of Appeals (Second Circuit) in Silvestri v. Italia SpA di Navigazione [1968] 1 Lloyd's Rep. 263Google Scholar; see also Corbin on Contracts, no. 607. Unlike the modern English law there is no trace of any assumption that people know that terms exist.
33 The Stella [1900] P. 161.Google Scholar
34 See, for instance, Ashby v. Tolhurst [1937] 2 All E.R. 837.Google ScholarMendelssohn v. Normand Ltd. [1970] 1 Q.B. 177.Google ScholarThornton v. Shoe Lane Parking Ltd. [1971] 2 Q.B. 163, 165.Google Scholar In none of these cases was the matter seriously disputed.
35 Watkins v. Rymill (1883) 10 Q.B.D. 178, 183, 189: Stephen J. emphasised that the contract was not a simple one, the terms of which were established by the common law in the absence of special agreement by the parties; accordingly any man of ordinary intelligence should expect terms.
36 Cockerton v. Naviera Aznar, S.A. [1960] 2 Lloyd's Rep. 450, 460.Google Scholar
37 Fosbroke-Hobbes v. Airwork Ltd. (1936) 53 T.L.R. 254.Google Scholar
38 Parker v. S.E.Ry. (1877) 2 C.P.D. 416, 422; but cf. Bramwell L.J. at p. 428.
39 Curtis v. Chemical Cleaning and Dyeing Co. [1951] 1 K.B. 805, 809.Google Scholar
40 Ibid.
41 Hensonv. L.N.E.Ry. [1946] 1 All E.R. 653, 661.Google Scholar
42 Chapelton v. Barry U.D.C. [1940] 1 K.B. 532, 538 and 539.Google Scholar The decision was the more easily reached because (a) the ticket was often issued after the contract had been made, and (b) there was a prominent notice board which appeared to deal with any contractual terms.
43 Taylor v. Glasgow Corp., 1952 S.C. 440.Google Scholar
44 Skrine v. Gould (1912) 29 T.L.R. 19.Google Scholar
45 Walls v. Centaur Co. Ltd. (1921) 126 L.T. 242, 245.Google Scholar
46 Burnett v. Westminster Bank Ltd. [1966] 1 Q.B. 742, 763.Google Scholar
47 [1964] 1 W.L.R. 125.
48 At p. 129, pp. 131–132; p. 134.
49 At p. 128.
50 Hartog v. Colin and Shield [1939] 3 All E.R. 566.Google Scholar
51 Thompson v. L.M.S.Ry. [1930] 1 K.B. 41, 49Google Scholar; Hood v. Anchor Line Ltd. [1918]Google Scholar A.C. 837; Acton v. Castle Mail Packets Co. Ltd. (1895) 73 L.T. 158, 159–160. Ignorance is no excuse: Parker v. S.E.Ry. (1877) 2 C.P.D. 416, 424 per Baggallay L.J.
52 Parker v. S.E.Ry. (1877) 2 C.P.D. 416, 425.
53 (1877) 2 C.P.D. 416, 422.
54 Generally see Singh and Colinvaux, Shipowners, nos. 668 et seq.; Carver, Carriage by Sea (12th ed.), nos. 45 et seq.
55 [1975] Q.B. 303.
56 At p. 310.
57 At p. 313.
58 See, for instance, A. Schroeder Music Publishing Co. Ltd. v. Macaulay [1974] 3 All E.R. 616Google Scholar (restraint of trade); Lloyds Bank Ltd. v. Bundy [1974] 3 W.L.R. 501, 506Google Scholar (undue influence); Clifford Davies Management Ltd. v. WEA Records Ltd. [1975] 1 All E.R. 237Google Scholar (undue influence); Sealy [1975] C.L.J. 21.
59 Below III. 1.
60 See Chitty, nos. 670, 702; Cheshire and Fifoot, p. 141.
61 But cf. below III. l.
62 See Hoggett, 33 M.L.R. 518.
63 [1969] 2 A.C. 31; for a similar view in earlier cases see Roe v. R. A. Naylor Ltd. [1917] 1 K.B. 712, 716Google Scholar; Spurting (J.) Ltd. v. Bradshaw [1956] 1 W.L.R. 461Google Scholar; the view was accepted at an early date in Australia: Balmain New Ferry Co. Ltd. v. Robertson (1906) 4 C.L.R. 379.Google Scholar
64 At p. 90, pp. 104–105, p. 113 and p. 130.
65 Spurling (J.) Ltd. v. Bradshaw [1956] 1 W.L.R. 461, 467Google Scholar (“many” occasions); B.R.S. Ltd. v. Arthur V. Crutchley & Co. Ltd. [1968] 1 All E.R. 811Google Scholar (“frequently over many years”); Transmotors Ltd. v. Robertson & Buckley & Co. Ltd. [1970] 1 Lloyd's Rep. 224, 226Google Scholar (“numerous” occasions); Eastman Chemical International A.G. v. N.M.T. Trading Ltd. [1972] 1 Lloyd's Rep. 25.Google Scholar
66 Hollier v. Rambler Motors (A.M.C.) Ltd. [1972] 2 Q.B. 71.Google Scholar
67 McCutcheon v. David MacBrayne Ltd. [1964] 1 W.L.R. 125, 134Google Scholar; this view has found favour in Australia: D. J. Hill & Co. Pty. Ltd. v. Walter H. Wright Pty. Ltd. [1971] V.R. 749Google Scholar, discussed by Bingham in 9 Melbourne U.L.R. 144.
68 Bingham, loc. cit.
69 Henry Kendall & Sons v. William Lillico & Sons Ltd. [1969] 2 A.C. 31.Google ScholarCf. Elkan, 125 N.L.J. 200.
70 Hollier v. Rambler Motors (A.M.C.) Ltd. [1972] 2 Q.B. 71, 77.Google Scholar
71 [1964] 1 W.L.R. 125.
72 At p. 138; see also pp. 128, 129 and 131–132.
73 At p. 128.
74 Spurting (J.) Ltd. v. Bradshaw [1956] 1 W.L.R. 461, 468Google Scholar; Hoggett, 33 M.L.R. 518, 520.
75 [1970] 1 Q.B. 177.
76 At p. 182, by reference to his own judgment in Spurting (J.) Ltd. v. Bradshaw [1956] 1 W.L.R. 461, 467.Google Scholar
77 At pp. 184–185.
78 Cf. Roe v. R. A. Taylor Ltd. (1918) 87 L.J.K.B. 958, 963Google Scholar; Elkan, 125 N.L.J. 200. Note, however, that a newly included term may not itself be binding because it is unusual (see below III. 1) or because the previous dealings without the term amount to misleading presentation when it is brought in (see below IV. 2) or simply because it is new (below III. 2).
79 D. J. Hill & Co. Pty. Ltd. v. Walter H. Wright Pty. Ltd. [1971] V.R. 749.Google Scholar In England see Smith v. Taylor [1966] 2 Lloyd's Rep. 231, 235.Google Scholar
80 McCutcheon v. David MacBrayne Ltd. [1964] 1 W.L.R. 125, 128Google Scholar; see also Hoggett, 33 M.L.R. 518, 528; Bingham, 9 Melbourne U.L.R. 144, 146.
81 (1889) 14 P.D. 64.
82 The very fact that the defendant normally seeks to incorporate the terms expressly may be inconsistent with their being implied as a matter of what is “too obvious to mention” under the rule in The Moorcock.
83 In the present context, see McCutcheon v. David MacBrayne Ltd. [1964] 1 W.L.R. 125Google Scholar; as regards implied terms see, for instance, Lupton v. Potts [1969] 1 W.L.R. 1749.Google Scholar
84 Hoggett, 33 M.L.R. 518, 529.
85 [1969] 2 A.C. 31.
86 Cf. the use of the rule in The Moorcock to bring in terms less obvious to the parties and less necessary to the contract: see Glanville Williams, 61 L.Q.R. 401; Treitel, p. 130, calls such terms “terms implied in law.” It is unlikely that the court would imply the defendant's own terms on this basis.
87 Parker v. S.E.Ry. (1877) 2 C.P.D. 416, 423.
88 Chapelton v. Barry U.D.C. [1940] 1 K.B. 532, 539.Google Scholar
89 Stewart v. L.N.W.Ry. (1864) 33 L.J.(Ex.) 199; Zunz v. S.E.Ry. (1869) L.R. 4 Q.B. 539; Highland Ry. v. Menzies (1878) 5 R. 887; Cooke v. T. Wilson, Sons & Co. Ltd. (1915) 85 L.J.K.B. 888, 896Google Scholar; Williamson v. North of Scotland and Orkney and Shetland S.N. Co., 1916 S.C. 554, 564Google Scholar; Hood v. Anchor Line Ltd. [1918] A.C. 837, 842Google Scholar; Thompson v. L.M.S.Ry. [1930] 1 K.B. 41, 52Google Scholarper Lawrence L.J., the only member of the court to decide the case on this basis alone; Penton v. Southern Ry. [1931] 2 K.B. 103, 109–110Google Scholar; but see also Treitel, p. 139; Cf. Stephen v. International Sleeping-Car Co. Ltd. (1903) 19 T.L.R. 621.Google Scholar
90 II. 1.
91 In this sense: Richardson Spence & Co. v. Rowntree [1894] A.C. 217.
92 Chapelton v. Barry U.D.C. [1940] 1 K.B. 532, 536Google Scholar (notice by chairs for hire); Thornton v. Shoe Lane Parking Ltd. [1971] 2 Q.B. 163Google Scholar (notice at entrance to car park).
93 Ashdown v. Samuel Williams & Sons Ltd. [1957] 1 Q.B. 409, 425.Google Scholar
94 Ashdown v. Samuel Williams & Sons Ltd. above; The Humorist [1944] P. 28Google Scholar; in addition to the famous ticket a placard was relied upon by the defendants in Parker v. S.E.Ry. (1877) 2 C.P.D. 416 but this was not discussed by the Court of Appeal or by the Court of Common Pleas: 1 C.P.D. 618.
95 The Humorist [1944] P. 28.Google Scholar
96 Butler v. Heane (1810) 2 Campb. 415, 416; Roe v. R. A. Naylor Ltd. [1917] 1 K.B. 712, 714–715Google Scholar; Ashdown v. Samuel Williams & Sons Ltd. [1957] 1 Q.B. 409, 422.Google Scholar
97 [1970] 1 Lloyd's Rep. 364.
98 At p. 368.
99 [1970] 1 Q.B. 176.
1 Vernon, The Psychology of Perception, p. 151.
2 At p. 182.
3 See above II. 3.
4 See below III. 2.
5 Vernon, p. 148.
6 See, for instance, Hood v. Anchor Line Ltd. [1918]Google Scholar A.C. 837, 848.
7 Gray v. L.N.E.Ry., 1930Google Scholar SC.. 989, 992.
8 Silvestri v. Italia SpA di Navigazione [1968] 1 Lloyd's Rep. 263, 268Google Scholar where the judge said: “the thread that runs implicitly through the cases sustaining incorporation is that the steamship line had done all it reasonably could to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights.” He continued and cited in this connection the decision of the House of Lords in Hood v. Anchor Line Ltd. [1918]Google Scholar A.C. 837; however, it is submitted that the latter decision does not support such a strict view.
9 Norman v. Bennett [1974] 1 W.L.R. 1229.Google Scholar
10 [1949] 1 K.B. 532.
11 Above II. 3.
12 [1964] 1 W.L.R. 125.
13 At p. 130; cf. Bramwell L.J. in Parker v. S.E.Ry. (1877) 2 C.P.D. 416, 426: although the court agreed that the cloakroom ticket was not a contractual document, he said “No point was or could be made that the contract was complete before the ticket was given.”
14 [1918] A.C. 837.
15 At p. 843; see also p. 847.
16 (1915) 85 L.J.K.B. 888.
17 [1960] 2 Lloyd's Rep. 450.
18 At p. 461.
19 See also Harris v. G.W.Ry. (1876) 1 Q.B.D. 515, 522–3.
20 Loftus v. Roberts (1902) 18 T.L.R. 532Google Scholar; May & Butcher v. R. [1934] 2 K.B. 17Google Scholar; Scammell v. Ouston [1941]Google Scholar A.C. 251; Courtney Ltd. v. Tolaini Ltd. [1975] 1 All E.R. 716.Google Scholar
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22 Parker v. S.E.Ry. (1877) 2 C.P.D. 416, 423.
23 Richardson, Spence & Co. Ltd. v. Rowntree [1894] A.C. 217, 221; Acton v. Castle Mail Packets Co. Ltd. (1895) 73 L.T. 158, 160; Marriott v. Yeoward Bros. [1909] 2 K.B. 987, 992Google Scholar; Cooke v. T. Wilson, Sons & Co. Ltd. (1915) 85 L.J.K.B. 888, 896.Google Scholar
24 Cf. the Canadian case of Firchuk and Firchuk v. Waterfront Cartage [1969] 2 Lloyd's Rep. 533Google Scholar in which the plaintiff was held to have had insufficient notice of terms in a delivery slip because he was Ukrainian and read and understood little English, even though he had signed the slip, and with no apparent finding that the defendants were aware of his language difficulty.
25 [1970] 1 Lloyd's Rep. 364.
26 At p. 368.
27 [1971] 2 Q.B. 163.
28 At p. 170.
29 At pp. 172–173.
30 [1968] 1 W.L.R. 625; in Canada see O'Connor Real Estate Ltd. v. Flynn (1970) 110 L.R. (3d) 551Google Scholar, discussed by Waddams in 49 Can. Bar Rev. 578, 590.
31 At p. 630.
32 Lewis v. M'Kee (1868) L.R. 4 Ex. 58. Cf. Armour v. Walford [1921] 3 K.B. 473.Google Scholar
33 (1879) Q.B.D. 38.
34 At p. 40.
35 (1862) 12 C.B.(n.s.) 76, 81–84.
36 [1930] 1 K.B. 41, 52–53.
37 [1960] 1 Lloyd's Rep. 380, 387; see also Cockerton v. Naviera Aznar, S.A. [1960] 2 Lloyd's Rep. 450, 462.Google Scholar
38 In Spurling (J.) Ltd. v. Bradshaw [1956] 1 W.L.R. 461, 466.Google Scholar See also Parker v. S.E.Ry. (1877) 2 C.P.D. 416, 428.
39 A contrary view was accepted in the earlier ticket cases: Van Toll v. S.E.Ry. (1862) 12 C.B.(n.s) 76, 88 but overridden by later decisions such as Grand Trunk Ry. Co. of Canada v. Robinson [1915]Google Scholar A.C. 740; cf. the use of “blank norms” in France and Germany, discussed by Lenhoff, pp. 487 et seq.
40 Cf. the reasoning with respect to fundamental breach in the Suisse Atlantique case [1967] 1 A.C. 361.Google Scholar
41 Brownsword (1972) 35 M.L.R. 183.
42 Brownsword, loc. cit. See also Baker in [1971] C.L.P. 53, 72 et seq. and references cited; in particular, Lenhoff, p. 484.
43 [1975] Q.B. 303.
44 [1951] 1 K.B. 805.
45 Curtis v. Chemical Cleaning and Dying Co. [1951] 1 K.B. 805, 808–809.Google Scholar
46 Cf. the rule that silence cannot constitute a misrepresentation; the exceptions to this rule could be extended: Treitel, pp. 261 et seq.
47 Sutton and Shannon, p. 107.
48 [1966] 1 Q.B. 742.
49 At pp. 762–763.
50 See Scrutton, Charterparties and Bills of Lading (18th ed.), p. 54.
51 See, for instance, Cooke v. T. Wilson, Sons & Co. Ltd. (1915)Google Scholar L.J.K.B. 888, 895.
52 [1918] A.C. 837.
53 See, for instance, Watkins v. Rymill (1883) 10 Q.B.D. 178; Richardson, Spence & Co. v. Rowntree [1894] A.C. 217; Henson v. L.N.E.Ry. [1946] 1 All E.R. 653Google Scholar; cf. The Humorist [1944] P. 28Google Scholar where the judge assumes existence of terms and concentrates on access.
54 See Treitel, p. 139.
55 Ryan v. Oceanic S.N. Co. Ltd. [1914] 3 K.B. 731, 756–757Google Scholar; Nunan v. Southern Ry. [1923] 2 K.B. 703, 708Google Scholar; Van Toll v. S.E.Ry. (1862) 12 C.B.(n.s.) 75, 83–84; Roe v. R. A. Naylor Ltd. [1917] 1 K.B. 712, 715Google Scholar; Gray v. L.N.E.Ry., 1930Google Scholar S.C. 989, 1009; The Humorist [1944] P. 28, 31Google Scholar; Hood v. Anchor Line Ltd. [1918]Google Scholar A.C. 837, 846–847; arguably the decision in Sugar v. L.M.S.Ry. [1941] 1 All E.R. 172Google Scholar that a railway ticket on which the words “for conditions see back” had been obliterated, gave insufficient notice, is in the same sense; however, the judge seemed to treat it as a matter of notice that terms existed. In the United States, see Zimmer v. New York C.R. Co., 137 N.Y. 460 (1893) that the terms must be ascertainable.
56 [1930] 1 K.B. 41.
57 See pp. 47–48, p. 52 and pp. 55–56. See also in Scotland Gray v. L.N.E.Ry., 1930 S.C. 989, 1010
58 Cheshire and Fifoot, The Law of Contract (6th ed.), p. 110.
59 Highland Ry. v. Menzies (1878) 5 R. 887; Gray v. L.N.E.Ry., 1930Google Scholar S.C. 989, 1009; in England see Cooke v. T. Wilson, Sons & Co. Ltd. (1915) 85 L.J.K.B. 888, 898Google Scholar; for a more general reference to business convenience, see Henson v. L.N.E.Ry. [1946] 1 All E.R. 653, 660–661.Google Scholar
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61 [1971] 2 Q.B. 163, 165.
62 At p. 173.
63 U.S. Av.R. 1 (1965).
64 [1909] 2 K.B. 987.
65 At p. 993.
66 Williamson v. North of Scotland and Orkney and Shetland S.N. Co., 1916Google Scholar S.C. 554, 466; Thompson v. L.M.S.Ry. [1930] 1 K.B. 41, 46.Google Scholar
67 [1930] 1 K.B. 41, 56.
68 II. 4 (v).
69 Thompson v. L.M.S.Ry. [1930] 1 K.B. 41Google Scholar; see also Sugar v. L.M.S.Ry. [1941] 1 All E.R. 172, 173.Google Scholar
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71 Shawcross and Beaumont on Air Law (3rd ed.), p. 478 report a decision of the Turkish Court of Cassation that if a person receives a document obviously containing terms in a language with which he is not familiar, it is his duty to seek an explanation; if he does not do so, he is nevertheless bound by the terms.
72 Budd v. P. & O. S.N. Co. [1969] 2 Lloyd's Rep. 262, 274–275.Google Scholar
73 The Enforcement of Morals, p. 49.
74 Van Toll v. S.E.Ry. (1862) C.B.(n.s.) 75, 88.
75 But cf. Mackay, Lord in Taylor v. Glasgow Corp., 1952Google Scholar S.C. 440, 450.
76 McCutcheon v. David MacBrayne [1964] 1 W.L.R. 125, 135.Google Scholar
77 Derby Cables Ltd. v. Frederick Oldridge Ltd. [1959] 2 Lloyd's Rep. 140, 149.Google Scholar
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79 (1875) L.R. 2 Sc. & Div. 470.
80 But cf. the view in Watkins v. Rymill (1883) 10 Q.B.D. 178, 189.
81 166 U.S. 375 (1897).
82 Maibrunn v. Hamburger-American S.S. Co. 77 F.2d 304 (2 Circ. 1935)Google Scholar; The Kungsholm 86 F.2d 703 (2 Cir. 1936)Google Scholar; Baron v. Compagnie Générale Transatlantique 108 F.2d 21 (2 Cir. 1939)Google Scholar these and other cases are discussed in Silvestri v. Italia SpA di Navigazione [1968] 1 Lloyd's Rep. 263.Google Scholar
83 [1940] 1 K.B. 532, 536.
84 [1914] 3 K.B. 731.
85 At pp. 747–748.
86 [1917] 1 K.B. 712, 714–715; see also Butler v. Heane (1810) 2 Camp. 415, 416.
87 [1934] 2 K.B. 394, 403 per Scrutton L. J.
88 [1951] 1 K.B. 805.
89 See the passage quoted from the judgment of Denning L.J. above III. l.
90 At p. 808.
91 [1970] 1 Q.B. 177; cf. Coote [1975] C.L.J. 19.
92 Spencer Bower and Turner, The Law of Actionable Misrepresentation (3rd ed.), p. 268.
93 [1951] 1 K.B. 805, 810.
94 This is particularly doubtful where the contract is signed, as such a conclusion is difficult to reconcile with the rules of non est factum; see Saunders v. Anglia Building Society [1971]Google Scholar A.C. 1004; Spencer Bower and Turner, p. 267.
95 Misrepresentation Act 1967, ss. 1 and 2.
96 Watkins v. Rymill (1883) 10 Q.B.D. 178, 189.
97 See Corbin, No. 607; but cf. McCutcheon v. David MacBrayne Ltd. [1964] 1 W.L.R. 125, 133–134.Google Scholar
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99 See, for instance, Hardwick Game Farm v. S.A.P.P.A. [1966] 1 W.L.R. 287, 339–340Google Scholarper Diplock L.J.
1 Cf. Atiyah, Introduction to The Law of Contract (2nd ed.), p. 129.
2 I wish to express my gratitude to Stephen Waddams and to Colin Turpin for their helpful comments on the first draft of this paper.