• In the case of Interfoto Picture Library ltd v Stiletto visual programmes ltd 1989 QB 433, it was held that clear and reasonable efforts must be made to bring any particularly onerous and unusual conditions to the attention of the other party to form part of a contract.

Facts of the Case

  • The defendants, an advertising agency required photographs for a 1950’s presentation.
  • The claimants dispatched 47 transparencies with a delivery note which stated that the transparencies were to be returned in 14 days, and that a holding fee of GBP 5 per day for each transparency would be charged if they were not. The defendants did not use the transparencies, put them to one side and forgot about them for a further two weeks. To their no doubt considerable consternation an invoice arrived for £3,783 holding fee. They refused to pay.
  • The claimants obtained judgment.

Issues in Interfoto Picture Library ltd v Stiletto visual programmes ltd 1989 QB 433

  • Could the term contained in the delivery note be incorporated into the contract?

Held by Court of Appeal (Civil division)

  • Appeal allowed.

Dillon LJ

  • Held that where a condition was particularly onerous or unusual, the part seeking to enforce it must show that it had been fairly and reasonably brought to the other’s attention.
  • The condition was unreasonable and extortionate and had not been sufficiently brough to D’s attention and as a result did not form part of the contract.
  • “At the time of the ticket cases in the last century it was notorious that people hardly ever troubled to read printed conditions on a ticket or delivery note or similar document. That remains the case now. In the intervening years the printed conditions have tended to become more and more complicated and more and more one-sided in favour of the party who is imposing them, but the other parties, if they notice that there are printed conditions at all, generally still tend to assume that such conditions are only concerned with ancillary matters of form and are not of importance. In the ticket cases the courts held that the common law required that reasonable steps be taken to draw the other parties’ attention to the printed conditions or they would not be part of the contract. It is in my judgment a logical development of the common law into modern conditions that it should be held, as it was in Thornton v. Shoe Lane Parking , that, if one condition in a set of printed conditions is particularly onerous or unusual, the party seeking to enforce it must show that that particular condition was fairly brought to the attention of the other party.
  • In the present case, nothing whatever was done by the plaintiffs to draw the defendants’ attention particularly to condition 2; it was merely one of four columns’ width of conditions printed across the foot of the delivery note. Consequently condition 2 never, in my judgment, became part of the contract between the parties”