Exclusion notice displayed after the contract is made at an automatic car park barrier (Thornton)
Sanjay Mehta drove to a multi-storey car park in England. At the entrance, a sign showed only the hourly charges. He pulled up to an automatic barrier, which issued a ticket stating "Issued subject to the conditions displayed inside" and lifted. Having driven in, he passed a notice on a pillar inside stating that the operator accepts no liability for damage to vehicles, however caused. Sanjay did not read the ticket or the notice. While parked, his car was damaged by the operator's negligence. The operator relies on the notice.
Leaving aside any statutory controls on exclusion clauses, which of the following best describes whether the exclusion clause is part of the contract?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: It is not part of the contract, because the contract was concluded at the entrance barrier, before the clause was brought to Sanjay's notice.
THE RULE TO REMEMBER
Terms are incorporated by notice only if reasonable notice is given before or when the contract is made; terms first notified after the customer is irrevocably committed are not part of the contract.
Exclusion notice displayed after the contract is made at an automatic car park barrier (Thornton)
A term is incorporated by notice only if it is fairly brought to the other party's attention before or at the time the contract is made. In Thornton v Shoe Lane Parking Ltd the Court of Appeal held that a customer at an automatic car park was not bound by an exclusion displayed inside. Lord Denning MR said the contract was concluded at the entrance when the machine issued the ticket, so terms on or referred to by the ticket came too late. Sir Gordon Willmer said any attempt to introduce conditions after the irrevocable step of causing the machine to operate must fail. The court added that a wide exclusion requires especially clear notice. Here the only notice at the entrance showed charges. The exclusion appeared only on the ticket and inside, after Sanjay was committed, so it is not part of the contract.
Why A is wrong: A ticket issued at the point the customer is already committed comes too late to introduce new terms, whether or not it is read.
Why B is wrong: Notice must be given before or at the time of contracting; an opportunity to read terms after committing to the contract is not enough.
Why D is wrong: In Thornton the court rejected the idea that a car park exclusion was so usual that notice could be assumed.
Why E is wrong: Signature is one way of incorporating terms, but reasonable notice given before contracting is another.
A little more practice done.
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