''L'Estrange v F Graucob Ltd''
9342 KB 394 is a leading
English contract law
English contract law is the body of law that regulates legally binding agreements in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries ...
case on the incorporation of
terms into a
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
by
signature
A signature (; from la, signare, "to sign") is a Handwriting, handwritten (and often Stylization, stylized) depiction of someone's name, nickname, or even a simple "X" or other mark that a person writes on documents as a proof of identity and ...
. There are exceptions to the rule that a person is bound by his or her signature, including
fraud
In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compen ...
,
misrepresentation
In common law jurisdictions, a misrepresentation is a false or misleading '' R v Kylsant'' 931/ref> statement of fact made during negotiations by one party to another, the statement then inducing that other party to enter into a contract. The ...
and ''
non est factum
( Latin for "it is not ydeed") is a defence in contract law that allows a signing party to escape performance of an agreement "which is fundamentally different from what he or she intended to execute or sign". A claim of means that the signatu ...
''.
Lord Denning
Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 whe ...
, as a young barrister, represented the company in this action, but later - for instance, speaking in Parliament in 1977 - made clear that he regarded the decision as wrong.
Facts
Miss Harriet Mary L'Estrange had a cafe in Great Ormes Road,
Llandudno
Llandudno (, ) is a seaside resort, town and community in Conwy County Borough, Wales, located on the Creuddyn peninsula, which protrudes into the Irish Sea. In the 2011 UK census, the community – which includes Gogarth, Penrhyn Bay, Craig ...
. Two travelling salesmen, Mr Page and Mr Berse, representing Mr Graucob's slot machine business in City Road, London, came to visit her. She was persuaded to purchase a
cigarette machine and signed a document entitled 'Sales Agreement', stating:
"Please forward me as soon as possible: One Six Column Junior Ilam Automatic Machine... which I agree to purchase from you on the terms stated below...."
Further along, in small print, an exclusion clause was stated:
"This agreement contains all the terms and conditions under which I agree to purchase the machine specified above, and any express or implied condition, statement, or warranty, statutory or otherwise not stated herein is hereby excluded.) H. M. L'Estrange."
She did not read the document. She was supposed to pay for the machine in instalments. But after machine was delivered it got jammed and did not work, despite mechanics coming to fix it. Miss L'Estrange thus refused to continue paying her installments and brought an action in the
Carnarvonshire
, HQ= County Hall, Caernarfon
, Map=
, Image= Flag
, Motto= Cadernid Gwynedd (The strength of Gwynedd)
, year_start=
, Arms= ''Coat of arms of Caerna ...
County Court at
Llandudno
Llandudno (, ) is a seaside resort, town and community in Conwy County Borough, Wales, located on the Creuddyn peninsula, which protrudes into the Irish Sea. In the 2011 UK census, the community – which includes Gogarth, Penrhyn Bay, Craig ...
for the sums already paid, arguing the machine was not fit for purpose. Mr Graucob contended that any warranties for fitness were expressly excluded by the contractual agreement she signed.
Judgment
County Court
The judge held, following the
Lord Herschell LC
Farrer Herschell, 1st Baron Herschell, (2 November 1837 – 1 March 1899), was Lord High Chancellor of Great Britain in 1886, and again from 1892 to 1895.
Life
Childhood and education
Herschell was born on 2 November 1837 in Brampton, Hamps ...
in ''
Richardson, Spence & Co v Rowntree'', that Mr Graucob was not entitled to rely on the exclusion clause. Lord Herschell had asked three questions: (1) Did the plaintiff know that there was writing or printing on the document? (2) Did she know that the writing or printing contained conditions relating to the terms of the contract? (3) Did the defendants do what was reasonably sufficient to give the plaintiff notice of the conditions? The judge held that question (3) was not satisfied.
Mr Graucob appealed.
Alfred Thompson Denning, at that time a barrister, represented F Graucob Ltd. Fifty years later, as Master of the Rolls, Denning described the case as emblematic of a "bleak winter for our law of contract" in his judgment on ''
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd
''George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd'' 982EWCA Civ 5and ''.
_Court_of_Appeal
Thomas_Edward_Scrutton">Scrutton_LJ_
Sir_Thomas_Edward_Scrutton_(28_August_1856_–_18_August_1934)_was_an_English_barrister,_judge,_and_legal_writer.
_Biography
Thomas_Edward_Scrutton_was_born_in__London,_the_son_of_Thomas_Urquhart_Scrutton,_a_wealthy_shipowner_and_head_of_the_well-_...
_found_the_exclusion_clause_formed_part_of_the_contract._It_was_immaterial_that_L'Estrange_had_not_read_the_clause._The_fact_that_she_signed_it_meant_that_she_was_bound_by_it._She_is_deemed_to_have_read_and_agreed_to_the_terms_of_the_contract.
Frederic_Maugham,_1st_Viscount_Maugham.html" ;"title="Thomas_Edward_Scrutton.html" "title="9832 AC 803 is a case concerning the sale of goods and exclusion clauses. It was decided under the Unfair Contract Terms Act 1977 and the Sale of Goods Act 1979.
...
''.