Ds rented certain photos from P. P, upon delivery, also included a delivery note in the bag, which was unlikely to draw any attention. In fact it included with terms and conditions, one of which set out the large amounts payable by D in the case of late return. When D was ordered to pay this (£3,800 for 10 days overdue), it refused and P sued D. CA denied P’s claim.
Dillon LJ: Thornton is NOT confined to cases of exemption clauses. He recognises that people tend not to read terms and conditions or have time to do so. Therefore it is logical that where a condition is particularly onerous or unusual, the party imposing terms must prove that it was “fairly brought to the recipient’s attention” in order to enforce it.
Bingham LJ: the “sufficiency of notice cases [above]” are an attempt to get round England’s lack of a “good faith” principle. He agrees With Dillon LJ’s reasoning. He says that these cases are not just, therefore, about conceptual analysis, but “at another level they are concerned with…whether it would, in all the circumstances, be fair (or reasonable) to hold a party bound by any conditions or by a particular condition of an unusual and stringent nature.”