Commercial law is essential to the operation of the business world.

To facilitate commercial activity, the

business community needs a legal system which is certain and predictable, which will give effect to its
transaction, which will give legal recognition to trade customs and market prices, which is flexible in order
to accommodate new practices and development in business and offers an efficient dispute resolution to
deal with its problems. Some of this however needs overlap, for example the recognition of the custom and
practices of the commercial community could be seen as an aspect for party autonomy. Thus, other needs
appear to conflict as well, like the flexibility in the law tends to be achieved only at the expenses of
certainty. In other words, if rules are strict and clear then it produces certainty but it may produce unfair
results in individual cases, whereas flexibility and discretionary principles may produce justice in
individual cases but tend to be less predictable. In this essay, the incorporation and interpretation of
exclusion clause in commercial transaction will be focused in depth and it will be seen how Unfair
Contract Terms Act 1977 (UCTA 1977) [1] made major changes to the law relating to exclusion clauses
and how it produces certainty in the attempt to meet the needs of commercial community. However, other
aspects of commercial law will be discussed in general to see if it facilitates commercial transaction.

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2. General Discussion
Certainty In Commercial Law
Many transactions are undertaken on the basis that courts will continue to follow the rules laid down in
previous contract case laws. The commercial community values legal certainty because it allows for
planning and anticipating of liability. Businesses need to know that courts will reliably and consistently
interpret commercial transactions. The English courts have consistently promoted considerations of
certainty of outcome over those of fairness and justice and offer commercial community a reasonable
degree of predictability. In Vallejo v Wheeler, [2] Lord Mansfield said, ‘in all mercantile transactions the
great object should be certainty, and therefore, it is of more consequence that a rule should be certain, than
whether the rule is established one way or the other. Because speculators in trade then know what ground
to go upon.’ [3] Therefore, in order for there to be certainty, the law should be clear and be capable of
being applied in a predictable way. For example, if a rule gives the court discretion to find a contract
unreasonable, this may be unpredictable. Business people are free to make their contract and to insist on its
strict performance. The goal is to enforce the true intention of the parties. Lord Devlin in Kum v Wat Tat
Bank Ltd, [4] stated, ‘the function of the commercial law is to allow, so far as it can, commercial men to
do business in the way they want to do it and not to require them to stick to forms that they may think to be
outmoded. The common law is not bureaucratic.’ [5] This non-intervention is justified on the basis that it
promotes certainty. Courts should only intervene if the contract terms are so restrictive or oppressive that it
offends against public interest. Of course, freedom of contract cannot be absolute. The courts have tended
to adopt a non-interventionist approach on the assumption that there is equality of bargaining power
between the contracting parties. It is questionable whether this assumption is as valid today, particularly in
the light of the increased use of standard terms of business and the rise of monopolies in which dominated
by certain groups. Nevertheless, to the extent that the law is not concerned with the fairness of outcome,
commercial law reflects the principles of freedom of contract. Factors suggest that assumption may be less
than reliable today, at least as far as the consumer buyer is concerned. However, ‘pure’ commercial
contracts are often excluded from such legislation, for example the Consumer Credit Act 2006 [6] has no
application to contracts with companies or where business lending to an individual exceeds £25,000 and
the UCTA 1977 [7] does not apply to, for example, international supply of goods nor insurance contracts.

In addition, courts have always recognised and given legal effect to the customs and practices of the
commercial community, sometimes at the expenses of stretching legal concepts. Courts do this by
implying a term into the contract. For example, if the contracting parties are in particular trade where there
is settled custom in usage, a term giving effect to that custom or usage may be implied into their contract.
In order for the custom or usage to be judicially recognised, it needs to be certain, that is, be well
established so the assumption is that parties contracted on the basis of it and reasonable, so that reasonable,
honest people would accept it. Business people want flexibility as well as predictability in order to
accommodate new practices and development in business. The need for flexibility to accommodate new
commercial practices has been met historically by judges recognising mercantile custom and incorporating
it within the common law. As commercial people find new ways of doing business, the law needs to adapt
to and accommodate these changing commercial practices. For example, with the new technology being
used in business, the special problems of e-commerce are factors influencing the development of
Commercial law. The law therefore needs to be flexible, although flexibility is often at the expenses of
certainty. Legislature also seeks to respond to and accommodate the needs of the commercial community.
For example, whenever the reform is proposed extensive consultation with the commercial community will
take place before production of the Law Commission report. For example, the Sale of Goods Act 1995. [8] 

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Nevertheless, in my view, in order for there to be certainty, the law should be clear and be capable of being
applied in a predictable way. Another aspect of legal certainty is that settled legal rules should not be
changed at times. This is because, once a rule is established parties will contract on that basis, so if the rule
is then changed, settled contracts may be disturbed and commercial parties expectations are not fulfilled.
However, this is not sometimes necessary especially when there is changing commercial practices as was
mentioned above. It is also recognised that commercial people need speedy, inexpensive and efficient
dispute resolution to deal with their problems. This need has been met in several ways. First, the
commercial court is a separate court of the Queen’s Bench Division staffed by judges who are experienced
arbiters of commercial disputes, the rules of the Commercial Court are flexible and operate with relatively
little formality and the judges of the Commercial Court have been willing to develop new remedies for
example, the freezing order to prevent defendants from disposing of assets and search and seize order
allowing seizure of evidence which might otherwise be destroyed. It my view, the law should also promote
values of fairness and good faith especially if commercial law is interpreted widely to include consumer
transaction. One of the principal objections to general standards of good faith and fair dealing is that they
threaten the values of certainty, predictability and consistency to which English contract law is classically
committed. Currently, for example, a party can exercise his rights to terminate his contract for breach even
though it causes him no loss and even if his sole motive is to escape the consequences of a bad bargain
(Mihalis Angelos) [9] or a party can being able to perform against other party’s wishes can claim the full
value of the invoice (White and Carter v Macgregor 1962). [10] There are valid arguments for keeping
good faith out of commercial transactions, for example, the uncertain scope of the concept would make it
difficult to predict outcome of legal disputes, something valued by the commercial community but it seems
that standards of fair dealing are increasingly being introduced into English Law, partly because of the
harmonisation of commercial law in the European Union. For example, the Unfair Contracts Terms in
Consumer Contracts Regulations 1999 (UCTCCR 1999) [11] and the House of Lords in Director General
of Fair Trading v First National Bank [12] , where a term in a regulated credit agreement which permitted
the lender to charge interest on the sum outstanding until payment and after the entry of any judgment was
not rendered unfair by the Unfair Terms in Consumer Contracts Regulations 1994. [13] This can also be
seen in the recent Consumer Credit Act 2006 [14] where extortionate credit bargain is replaced entirely by
an ‘unfair relationship test’.

Exclusion Clauses
It is clear that there has to be certainty in commercial law and some of the ways in which commercial law
can facilitate the commercial transaction has been generally discussed above. Now, the incorporation of
exclusion clause in commercial contracts will be discussed and it will be seen how the courts and
legislature have responded towards the use of it to facilitate the commercial community in commercial
transaction. For the reason of facilitating commercial transaction for the community, the English courts
have always been attached to the doctrine of freedom of contract, which holds that sane adults are free to
contract on any terms they wish. [15] In Printing and Numerical Registering Co. v Sampson, [16] Sir
George Jessel MR said: “If there is one thing more than another which public policy requires it is that men
of full age and competent understanding shall have the utmost liberty of contracting, and that their
contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of
Justice. Therefore, you have this paramount public policy to consider that you are not lightly to interfere
with this freedom of contract.” [17] Exclusion clauses have been the subject of keen academic debate for
almost half a century. The reason for such argument is that complete freedom of contract would allow a
stronger party to use exclusion clauses to force its customers to give up certain rights that they would
otherwise have enjoyed. Some academics believe this justifies the legal control of exclusion clauses.
Exclusion clause can be portrayed as a social nuisance because they are used by contracting parties to
avoid consequences of their failure to perform their contractual obligations. Although exclusion clause
provided easy ways for powerful parties to exempt liability, it is however mistake to see the exclusion
clause entirely in a negative way. Exclusion clause can play a very important role in the regulation of risk.
For example, a customer is able to put a value on the benefits of such a warranty, and decide whether or
not they want to pay for it, the market will then dictate a fair price for the warranty. In my opinion,
restricting exclusion clauses will harm the poor more than the rich by forcing them to 'buy' certain
warranties with goods and services, which may then put those goods and services beyond their reach. In
the case of British Fermentation Fermentation Products Ltd v compare Reavell, [18] it shows the role
played by exclusion clause in the regulation of risk. In this case it can be seen that the consequential losses
were almost four times the size of the contract price. Some business contracts afford to bear that type of
losses, so they rely on exclusion clause in order to contain their potential liability. [19] Judge Bowsher QC
held that this clause was efficient to exclude the vendor’s liability to the purchaser. In the light of the case
such as British Fermentation Fermentation Products Ltd v Compare Reavell, [20] it is difficult to defend
the view that exclusion clause do not have legitimate role to play in modern contract law but they do play
an important role in regulating and containing risk. Thus, in other words, exclusion clauses need to be
regulated and not outlawed. Overtime the nature of regulation has changed prior to the enactment of the
Unfair Contract Term Act 1977 [21] the courts did not have the power at common law to invalidate
exclusion clause on the grounds that it was unreasonable. In the absence of a direct power to regulate
unreasonable exclusion clause the courts resorted to indirect means. The principal indirect means were the
rules relating to the incorporation and interpretation on exclusion clause. In cases such as J Spurling Ltd v
Bradshaw [22] and Thornton v Shoe Lane Parking Ltd [23] the courts were able in effect to regulate an
unreasonable exclusion clause by concluding that it had not been incorporated into the contract. The other
device which the courts used was to apply to exclusion clauses particularly restrictive rules of
interpretation so as to enable them to conclude that the clause did not in fact exempt the defendant from the
particular loss that the plaintiff had suffered. [24] Now that the UCTA 1977 has been enacted, the need for
these indirect methods of contracts has largely disappeared as the act can do the job now. However there
are signs in the case law that this old restrictive rules are on the way out, for example it can be seen in the
case of Bank of Credit and Commerce International SA v Ali, [25] where Lord Hoffman in his dissenting
judgement speech said that “it was however unusual even in the 19th century, for commercial documents
to be interpreted according to rules of construction. The quest for certainty, which still dominated the
construction of wills and deeds, was though less important than the need to give effect to the actual
commercial purpose of the document. There was however one remarkable example in the 20th century of a
rule of construction being evolved by the courts in a commercial context. This was the rule of construing
exemption clauses. The purpose was not to promote certainty of construction but to remedy the unfairness
which exemption clauses could create”. [26] In my view, the law is currently in a state of transition as the
status of some of the old cases, which adopt a restrictive approach to the interpretation of exclusion
clauses, is presently uncertain.

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Thus, a contracting party which wishes to rely on an exclusion clause in order to exclude or limit liability
towards its contracting party must prove two matters and may be subject to challenge in third issue. The
first matter which the party relying on the exclusion clause must prove is that the clause has been validly
incorporated into the contract. Exclusion clause may be regarded as ‘onerous’ and ‘unusual’ and so attract
the more stringent rules relating to the incorporation of terms into the contract. [27] This clause facilitates
commercial transaction and helps to meet the needs of commercial community. For example, it can be seen
in the case of Inferfoto Picture Library Ltd v Stiletto Visual Programmes Ltd. [28] But this is by no means
a necessary inference. For example, a clause which limited the contractor’s liability at a maximum of the
contract price was held not to be ‘onerous’ or ‘unusual’. This can be seen in the case of Shepherd Homes
Ltd v Encia Remediation Ltd, [29] where a sub-contractor had done what was necessary to give fair notice
to an employer that its offer was subject to a limitation on liability. [30] The second matter which a party
relying upon an exclusion clause must prove is that the exclusion clause, as a matter of construction is
effective to exclude liability for the loss that the claimant has suffered. And the third matter relates to
UCTA 1977. [31] 

Incorporation Of An Exclusion Clause

I.Incorporation By Signature
Prior to the Second World War there was what Denning, in his judgement of Mitchell (George)
(Chesterhall) Ltd. V Finney Lock Seeds Ltd., [32] called 'a bleak winter for our law of contract' [33] .
During this period exclusion clauses were enforced with little regard to notions of justice and fairness.
Exclusion clauses must be expressed clearly and without ambiguity or they will be ineffective. [34] The
clause must be clearly expressed what its intention is. In my view, exclusion clauses must be construed
strictly and the degree of strictness appropriate to their construction may properly depend upon the extent
to which they involve departure from the implied obligations ordinarily accepted by the parties whom will
be entering a particular kind of contract. The incorporation of terms into a contract can be a contentious
issue in practice. There are three principle options available on how can a party take adequate steps to
ensure that its terms are incorporated into the contract. The first is to ensure that the other party to the
contract signs the document that contains all the relevant terms. The second is to take reasonable steps to
bring the terms to the notice of the other party. The third option is incorporation by course of
dealing. [35] The first issue which is incorporation by signature will be discussed first. The effect of
signing a written document was first indicated by Mellish L.J in Parker v South Eastern Railway [36] . In
the ordinary case he said: ‘where an action is brought on a written agreement which is signed by the
defendant, the agreement provided by proving his signature, and, in the absence of fraud, it is wholly
immaterial that he has not read the agreement and does not know its contents’. [37] This was accepted by
as correct by the Court of Appeal in L’Estrange v F.Graucob Ltd. [38] The claimant, the owner of the cafe,
agreed to buy from the defendants an automatic slot machine for cigarettes. The agreement was to pay by
instalments, and it contained an exemption clause excluding liability for breach of warranty or condition.
The claimant signed the agreement without reading its terms. The machine proved faulty, and the claimant
purported to terminate the contract for breach of condition. It was held that she could not do so since she
was bound by the terms of the exclusion clause. [39] The words of Scrutton L.J were unambiguous: “in
cases in which the contract is contained in a railway ticket or other unsigned document, it is necessary to
prove that an alleged party was aware, or ought to have been aware, of its terms and conditions. These
cases have no application when the document has been signed. When a document containing contractual
terms is signed, then, in the absence of fraud, or I will add, misrepresentation, the party signing it is bound,
and it is wholly immaterial whether he has read the document or not”. [40] Hence, the UCTA
1977 [41] would now regulate the validity of the exclusion clause found in the contract between the parties
in L’Estrange. But at that time which L’Estrange was decided the court did not have the power at common
law to strike down exclusion clauses on the ground that they were unreasonable or unfair. In so far as the
criticism of L’Estrange are based on the unfairness of the result, it can be argued that any such unfairness
is best addressed by giving to the courts the power to control unreasonable or unfair terms and not by
modifying the rule that a party is bound by his own signature. A signature provides a measure of certainty
and it is frequently relied upon by third parties. As Moore- Bick LJ observed in Peekay Intermark Ltd v
Australia and New Zealand Banking Group Ltd, [42] the rule in L’Estrange is ‘ an important principle of
English Law which underpins the whole of commercial life: any erosion of it would have serious
repercussions’ [43] . New forms of technology may, however challenge this perspective of the value of a
signature. For an example, an electronic signature may count as a signature for the purpose of the rule in
L’Estrange. Thus, the signature rule is thought to promote contractual certainty in commercial transaction.

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Ii.Incorporation By Notice
A party who wishes to incorporate terms into a contract by giving his contracting party notice of them
must satisfy three requirements. First, notice must have been given at or before the time of contracting. In
Olley v Marlborough Court Ltd, [44] the notice was located in a hotel bedroom. It was held that it was
ineffective to exclude liability towards a guest of the hotel on the basis that the contract between the hotel
and the guest had been concluded before she set foot in the hotel bedroom. It was therefore too late to be
effective. Of course, if it could have been shown that if the claimants had visited the hotel regularly, and
that they were aware of the terms under which it did business, the clause may have been allowed to
stand. [45] In the era of contracts via the internet, great care must be taken in constructing websites so that
notice of any exemption clauses is given to a person entering into a contract. With the possibility of a
purchaser being able to jump pages by way of links, it is necessary to ensure that the pages including the
exclusion clauses is not capable of being bypassed by such links. The consequences of this arising may
mean that a contracting party will not be bound by an exclusion clause and this may facilitate commercial
transaction for the commercial community as it gives protection to consumers who enter into contracts not
wholly appreciating or understanding the full implications of the contract. The second requirement is that
the terms must have been contained or referred to in a document that was intended to have contractual
effect. In Chapelton v Barry UDC, [46] a ticket was given to someone who hired a deckchair was held not
to be a contractual document and so was not effective to give the hirer notice of the terms. [47] The third
requirement is that reasonable steps must have been taken to bring the terms to the attention of the other
party. This requirement has generated a considerable amount of case law which dates back to the decision
of the Court of Appeal in Parker v South Eastern Railway, [48] where the claimant had deposited a bag in
the cloakroom of a railway station belonging to the defendants. He was given a ticket with conditions
including a clause limiting liability. The claimant had not read the clause but was bound by it. The
defendant had done enough to notify the claimants of the clause. [49] In this case, the test applied by the
court is not whether the recipient has read the terms or taken reasonable steps to discover their existence.
Instead the court focus attention upon the party relying upon the terms and ask themselves whether that
party has taken reasonable steps to bring notice of the term or terms to the attention of the party. Interfoto
Picture Library Ltd v Stiletto Visual Programmes Ltd. [50] was a case which did not focus on exclusion
clauses but has implications for them. A clause stating that a charge of £5 per transparency per day was to
be levied if they were not returned by a certain date. The defendant forgot about the transparencies and was
eventually given a bill of £3,783.50. The Court held that this condition was unreasonable and extortionate,
and as such special attention should have been drawn to it. [51] The need to draw attention to unusual
clauses is not a recent development in contractual exclusion clauses, in Hood v Anchor Line (Henderson
Brothers) [52] Lord Dunedin stated “Accordingly it is in each case a question of circumstance whether the
sort of restriction that is expressed in any writing (which, of course, includes printed matter) is a thing that
is usual, and whether, being usual, it has been fairly brought before the notice of the accepting
party”. [53] In this particular case it was found that the conditions were not unusual and therefore did not
require explicit attention to be drawn to them. [54] Lord Dunedin’s inference that unusual conditions could
require extraordinary notices draws similarities to Lord Denning’s obiter in J Spurling Ltd v
Bradshaw [55] where he famously referred to the need for the ‘red hand’ pointing to the clause. [56] While
his comment may have its mark on the judicial memory and on textbook writers, it has not been translated
into commercial practice. Little red hands are not to be found in commercial contracts in the UK. A more
realistic step to take is to put the clause in bold print. A court may be more likely to conclude that
reasonable steps have been taken where there has been ‘an express acknowledgment in the contractual
document that the terms and conditions in question were incorporated. (Ocean Chemical Transport Inc v
Exnor Craggs Ltd). [57] 

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Iii.Incorporation By Course Of Dealing

Finally, a term may be incorporated into the contract as a result of a course of dealing between the parties
or as a result of the custom of the trade in which the parties work. The leading case on incorporation by
course of dealing is in the following decision of the House of Lords in McCutcheon v David MacBrayne
Ltd, [58] the claimant sued a ferry company for damages when a ferry carrying his car from Ishay to the
Scottish mainland sank. The contract had been made and no exclusion clause was signed. However,
exclusion clauses had been displayed on the walls of the office where the contract was made and on the
ferries. Over the previous years the claimant had used the defendants ferries to transport sheep, sometimes
signing the exclusion clause and sometimes not. The House of Lords held that there was no consistent
course of dealing which would have the effect of incorporating an exclusion clause into the
contract. [59] To meet the needs of commercial community, if an exclusion clause was accepted only
because of an oral undertaking than it would not be enforced. The party seeking to rely on a course of
dealing for the incorporation of terms will have to sustain the burden of proving that the course of past
conduct has been sufficiently consistent to give rise to the implication that in similar circumstances a
similar contractual result will follow. [60] Thus, the recent case on example of incorporation based on
course of dealing is provided by the decision in Balmoral Group Ltd v Borealis (UK) Ltd, [61] where the
course of dealing was established although this was despite the fact that the number of prior orders had
been small and for very different goods. The crucial factor was that Borealis had made it clear at the start
of their trading relationship that it was only willing to supply on the basis of its own terms and prices as
quoted. This position would have needed to be expressly reversed. The decisions in course of dealing cases
turn on their particular facts, but it should be easier to establish the necessary consistency in the course of
dealing between commercial parties than against a consumer. Thus, in British Crane Hire Corp Ltd v
Ipswich Plant Hire Ltd, [62] both parties were companies engaged in hiring out earth-moving equipment.
The plaintiffs supplied a crane to the defendants on the basis of a telephone contract made quickly, without
mentioning conditions of hire. The plaintiffs later sent a copy of their conditions but before the defendants
could sign them, the crane sank in marshy ground. The conditions, which were similar to those used by all
firms in the business, said that the hirer should indemnify the owner for all expenses in connection with
use. The defendants were liable for the expense involved in recovering the crane. The court held that the
terms would be incorporated into the contract, not by a course of dealing, but because there was a common
understanding between the parties, who were in the same line of business, that any contract would be on
these standard terms. [63] This case was distinguished in Scheps v Fine Art Logistic Ltd, [64] partly it
seems on the basis that the parties were not in exactly the same business. The defendant stored a sculpture
for the claimant which then went missing. The defendant alleged that the agreement with the claimant
incorporated the defendant’s standard terms and condition, limiting its liability to fixed figure. It alleged,
relying on British Crane that this was common knowledge in the transport and storage business so that the
claimant had considerable experience of arranging for transport of such works of art, must have been
aware of it. [65] Teare J held that the terms were not incorporated since the defendant had not provided the
claimant with a copy of these terms and there was no evidence that the claimant had any particular
knowledge of them. [66] Business people would always expect flexibility and understanding in order to
accommodate new practices and development in business to facilitate commercial transaction.

Interpretation Of An Exclusion Clause

In the past, the courts applied extremely restrictive rules to the interpretation of exclusion clause. In
essence what the court did was to apply the contra proferentum principle with particular venom to
exclusion clause. In Investors Compensation Scheme Ltd v West Bromwich Building Society, [67] Lord
Hoffman stated that ‘almost all the old intellectual baggage of ‘legal’ interpretation has been
discarded’. [68] The significance of this sentence for the interpretation of exclusion clause and limitation
clause was explained by Lord Hoffman in his dissenting judgement speech in Bank of Credit and
Commerce International SA v Ali, [69] where he stated that there was one remarkable example in the 20th
century of a rule of construction being evolved by the courts in a commercial context and that was the rule
for construing exemption clauses. The purpose of it was to remedy the unfairness which exemption clauses
could create. Further support for the proposition that modern courts are willing to cast off the baggage of
restrictive rules of interpretation can be found in the decision of the House of Lords in Fiona Trust and
Holding Corp v Privalov. [70] There it was held that the time had come to adopt a fresh approach to the
interpretation of arbitration clauses and that the scope of arbitration clause should not depend, as it has in
the past, on supposed differences between phrases such as ‘arising out of’ or ‘arising under’ the
contract. [71] 
I.Excluding Liability In Negligence
There is one particular context in which the old rules may have survived and that is in the case where one
party relies on an exclusion clause in order to exclude liability for his own negligence. The principle
applied by the courts when deciding whether or not a party has effectively excludes liability for his own or
employer’s negligence were authoritatively stated by Lord Morton of Henry in Canada Steamship Lines
Ltd v The King. [72] The first of these three principles is not problematic. If a clause ‘expressly exempts’ a
party from the consequences of his negligence then the clause is effective, as a matter of interpretation to
exclude liability [73] . The problem lies within the third and the second principle because they rest on the
dubious assumption that parties do not intend to use general words. According to the third principle,
general words will only be effective to exclude liability for negligently inflicted loss in the case where the
only realistic loss likely to be suffered by the claimant is the loss suffered as the result as the negligent of
the defendants. The impact of these rules at work can be demonstrated in the case of Hollier v Rambler
Motors (AMC) Ltd, [74] held that defendant were liable to Plaintiff for their negligence because they had
not established a course of dealing and so the clause was not incorporated into the oral contract and even if
it had been, the wording of the clause was not sufficiently plain to exclude liability for negligence. Per
Salmon, L.J stated that, in order to establish that a term has been implied into a contract by a course of
dealing, it is not essential to show that the party charged had actual and not merely constructive knowledge
of the term and with such actual knowledge had in fact assented to it. This case was distinguished by
British Crane Hire Corporation v Ipswich Plant Hire Ltd, [75] an owner's contractual conditions may be
incorporated into a contract of hire on the basis of a common understanding between the parties that such
conditions applied. The plaintiff and defendant were both engaged in the business of hiring out earth-
moving equipment. The defendant were also involved in drainage work on marshy ground and urgently
requiring a crane, agreed to hire such a crane from plaintiff, terms of payment being agreed but no mention
being made of Plaintiff's conditions of hire. The Plaintiff sent defendant a copy of such conditions which
provided, inter alia, that the hirer would be responsible for all expenses arising out of the crane's use.
Before defendant signed the form containing the conditions, the crane sank into the marsh through no fault
of defendant and plaintiff claimed from defendant the cost of recovering the crane. It was held, allowing
Plaintiff’s claim, that plaintiff’s conditions of hire applied since both parties were in the trade and of equal
bargaining power and on the evidence defendant and plaintiff both understood that plaintiff’s conditions of
hire would apply. This case of Hollier v Rambler was mentioned by Jose v MacSalvors Plant Hire
Ltd, [76] the hirer of a crane was not obliged to indemnify the crane's owner in respect of a claim for
damages based on the owner's negligence where the indemnity clause in the contract for hire made no
express reference to the owner's negligent acts. (westlaw)

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