D urgently needed to hire a crane form P, who agreed charges with D and then sent them the crane immediately. They then sent a form of printed conditions for D to sign. Before they could be signed, the crane sank and was destroyed due to nobody’s fault. Included in the unsigned forms was a clause placing strict liability on D should the crane be destroyed, and this was a standard industry condition. CA allowed P’s claim, saying that the term of the unsigned form of conditions that placed risk with D could be implied into the contract.
Lord Denning MR: There was a “course of dealing” because the term was so standard to the industry, while this case can be distinguished from Hollier on the grounds that here the parties are of equal bargaining power. Bargaining power might have been a motivation for Salmon LJ’s decision above but was NOT the ratio: the ratio was that 4 visits in five years does not equal a course of dealing and the one-off deal here could be held in the same light. The true distinction is that here both parties knew of the term and knew it was standard practice and would be imposed.
