D made purchases from P on P’s standard order form (to sell on to D’s customers in Iran) which stated that a full set of terms and conditions was available on request. D didn’t request it. Not included in the order form and not drawn to D’s attention was a clause unusual to the industry, that defective equipment was to be returned to P for repair/replacement at D’s own expense. P refused to pay the cost of bringing the machine back from Iran and P sued him for it.
Hirst LJ: As the condition was onerous and unusual, to determine whether the condition had been incorporated into the contract, the correct test was whether notice of the condition had fairly and reasonably been brought to the attention of the defendant.
Hobhouse LJ: He said the rule was less important now that the “Unfair Contract Terms Act” had effect but the rule could still apply to cases that fell outside its protection.