Exclusion clauses
Exclusion clauses

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Exclusion clauses

2.2 Unsigned contracts

If the contract is unsigned, the question is whether or not reasonable notice of the term has been given.

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Figure 4 A steam train

Activity 2 Has reasonable notice been given?

Timing: You should allow yourself 1 hour and 30 minutes to do this activity.

Watch this video and then read the PDF provided of the case of Parker v South Eastern Railway Co (1877) 2 CPD 416 [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] .

Download this video clip.Video player: The interplay between law and wider social developments
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Transcript: The interplay between law and wider social developments

Narrator
The development of standard form contracts is inextricably linked to the Industrial Revolution and the changes it created in many areas of British society. One example of this is the development of the railways. Between 1830 and 1880, Britain was transformed by the creation of a huge railway network.
For businesses, it was more effective than canal boats and horse-drawn wagons. For ordinary people, it offered a cheaper, quicker, and more comfortable option than stagecoaches. As people migrated towards the large mills and factories of the towns and cities, the railways became an integral part in finding and reaching work, visiting families, and even taking holidays.
At the same time, this mass movement of people meant an explosion in claims. People were entering into more contracts than ever by buying tickets and depositing items in cloakrooms. They were being placed in novel situations that could result in loss and injury. As you work through this unit, you will see a number of cases involving railway companies and passengers, demonstrating the interplay between law and wider economic and social developments.
End transcript: The interplay between law and wider social developments
The interplay between law and wider social developments
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Comment

All three judges agree that a new trial should be held. Lord Justice Baggallay suggests that such a ticket is usually seen as a voucher for payment and, on the face of it, would not be expected to contain conditions. He states that the key issue is whether Parker knew or had good reason to believe that the ticket contained conditions. Lord Justice Bramwell (at p. 428) argues that:

The defendants put into the hands of the plaintiff a paper with printed matter on it, which in all good sense and reason must be supposed to relate to the matter in hand. This printed matter the plaintiff sees, and must either read it, and object if he does not agree to it, or if he does read it and not object, or does not read it, he must be held to consent to its terms.

Although Lord Mellish’s judgment is now taken as the correct approach, this does illustrate that the reasoning used by different judges can be very different, even if the same decision is reached.

You may have noticed that Parker refers to the original trial being decided by a jury. Juries were a significant part of civil cases up to the County Courts Act 1846 and Common Law Procedure Act 1854, which made them optional in certain courts. Further legislation gradually eroded their importance in civil cases and the current position under the Senior Courts Act 1981 is that there is only a right to jury trial in cases of malicious prosecution, fraud and false imprisonment (and defamation if ordered by the court) (Hanly, 2005).

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Figure 5 An advertisement for The Importance of Being Earnest in which a baby is deposited in a handbag in a railway cloakroom
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