Understanding Contractual Terms: Representations, Warranties, and Liability, Exams of Contract Law

Download Understanding Contractual Terms: Representations, Warranties, and Liability and more Exams Contract Law in PDF only on Docsity! CONTRACT LAW REVIEW NOTES EXPRESS TERMS Three Important Distinctions • “Mere Puff” or Sales Talk - A boastful or flowery statement made in advertising a product or service. • Representation - A statement made which induces another party to enter into a contract but which does not form part of the contract itself. • Term - a promise, undertaking or “warranty” that becomes part of the contract itself. Mere Sales Talk Representations Terms No Legal Consequences The ideais that you shouldn’t take them seriously Liability for Damages For misrepresentation, but requires proof of fault or negligence Liability for Damages For breach of contract (automatic right - no need to prove fault or negligence) Warranty v Warranty • Contract law, confusingly, uses the term “warranty” in two distinct ways. • Meaning 1 - A general statement of promise that is incorporated into the contract as a term. • Meaning 2 - A specific sub-type of contractual term, the breach of which entitles a party to some damages/reward, but which does not end the contract. Lord Denning - Oscar Chess Ltd. v Williams “In saying that he must prove a warranty, I use the word ‘warranty’ in its ordinary English meaning to denote a binding promise...That is the meaning which it has borne in English law for 300 years.” “During the last hundred years, however, the lawyers have come to use the word ‘warranty’ in another sense. They use it to denote a subsidiary term in a contract as distinct from a vital term which they call a condition.” What is mere sales talk? Smith v Lynn (1954) 85 ILTR 57 • A property advertised as being “in excellent structural and decorative repair” was auctioned. • Smith was successful in this auction, outbidding the defendant Lynn. • Then, six weeks later, Smith put the property up for sale again, using the exact same advertisement. • Lynn was successful in the second auction. • It turned out that the property had extensive woodworm damage. • Lynn refused to complete payment, arguing that • there had been a misrepresentation. Smith sued for specific performance. • Curran J held in favour of Smith. He argued that the statements in the advertisement were classic sales talk, and not something that Lynn could reasonably rely upon. Curran J - Smith v Lynn “[A]dvertisements, however, must be looked at in their true perspective. They do not purport to be detailed reports by experts as to the condition of the property to be sold. It is common knowledge that the purpose of such advertisements is to draw attention to the good points of the property, and that one usually finds in such advertisements rather flourishing statements.” • The important distinction is the distinction between representations and terms... • ...though this has become less important due to the possibility of claiming damages for negligent misrepresentation or “damages in lieu” of rescission for cases of innocent misrepresentation. I. What/What is not a Term? Reduced to writing Context of Agreement Things said and done, in a particular context, resulting in contractual agreement Not reduced to writing Context of Agreement Things said and done, in a particular context, resulting in contractual agreement Lord Denning - Dick Bentley Productions v Harold Smith “I endeavoured to explain in Oscar Chess Ltd...that the question whether a warranty was intended depends on the conduct of the parties, on their words and behaviour, rather than on their thoughts. If an intelligent bystander would reasonably infer that a warrant was intended, that will suffice.” “...If a representation is made in the course of dealings for a contract for the very purpose of inducing the other party to act on it, and actually inducing him to act upon it, by entering into the contract, that is prima facie ground for inferring that it was intended as a warranty...” “But the maker of the representation can rebut this inference if he can show that it really was an innocent misrepresentation, in that he was in fact innocent of fault in making it, and that it would not be reasonable in the circumstances for him to be bound by it.” Denning suggests two more precise elements to the test here: Inducement: Was the statement made with the intention (and effect) of inducing the other party to enter the contract? Fault: Was the party who made it to blame for making it? (i.e. at fault in some respect). Lord Denning - Dick Bentley Productions v Harold Smith “Here we have a dealer, Smith, who was in a position to know, or at least to find out, the history of the car. He could get it by writing to the makers. He did not do so. Indeed, it was done later. When the history of this car was examined, his statement turned out to be quite wrong. He ought to have known better.” • The discussion of fault in this judgment seems odd as that should really make no difference whether something is deemed to be a term of a contract. • It also seems to blur the boundaries between the rules about misrepresentations and terms of a contract. Further compounded in... Esso Petroleum Co. Ltd v Mardon [1976] 1 QB 801 • Mardon entered into a tenancy agreement with Esso in respect of a filling station. • The agent from Esso had 40 year’s experience in the business and calculated that the annual throughput of the station was likely to reach 200,000 gallons by the third year of operation. • It turned out to be considerably less than that because he had overlooked certain planning restrictions. • The CoA held that Esso were liable for damages because either: o The statement was a warranty (or term within the contract) and therefore they were liable for breach. o The statement was a negligent misrepresentation. Denning MR - Esso Petroleum v Mardon “[the 200,000 gallon calculation] was a forecast made by a party -- Esso -- who had special knowledge and skill. It was the yardstick by which they measured the worth of a filling station. They knew the facts. They knew the traffic in the town. They knew the throughput of comparable stations. They had much experience and expertise at their disposal.” “They were in a much better position than Mr Mardon to make a forecast. It seems to me that if such a person makes a forecast, intending that the other should act upon it--and he does act upon it, it can well be interpreted as a warranty that the forecast is sound and reliable in the sense that they made it with reasonable care and skill.” • Here Denning seems to be refining the test further by eliminating the fault requirement: • Inducement: this remains a key element of his test: • Expected Competency: If the party making the statement is reasonably expected to be competent in making the statement, then it is more likely that it will be deemed a term within the contract. Elements so far • In order to determine whether a representation is a term of a contract, you adopt the intelligent bystander test, i.e you ask what a reasonably intelligent bystander would have inferred from the conduct and statements of the parties. To help in this task, you should consider: o Inducement - was the statement made with the intention (and effect) of inducing the other party into the agreement. o Expected Competency - was the statement made by someone who would be expected to have the competency to make such a statement. Are there other factors that a court should consider? • Yes: “importance” and “lapse of time” may also be relevant... Bannerman v. White (1861) 10 CBNS 844 • White was trying to buy some hops. He explicitly stated to the seller that “if they have been treated with sulphur, I am not even interested in knowing the price of them”. • The seller told him that they had not been treated with sulphur. This turned out to be incorrect. • The court held that the absence of sulphur treatment was a term of the contract because it was so important to the defendant. Couchman v Hill [1947] KB 554 • Couchman purchased a cow (heifer) at auction. • At the time, he asked both the auctioneer and the vendor whether the heifer was “served” (i.e. had she been impregnated or not). • They both said that she was not. • He later discovered that she was with calf and she died as a result of carrying the calf while too young. • He sued the defendant for breach of warranty. The CoA concluded that the oral statement that the • calf had been “unserved” amounted to a warranty. • A crucial factor in reaching this conclusion was the importance of the statement to the plaintiff, i.e. it was crucial to him that the heifer not be pregnant so it should be deemed a term of the contract. Routledge v. McKay [1954] 1 WLR 615 • A motorcycle was being put up for sale. The vendor had a registration book which stated that the motorcycle was registered in either 1941 or 42. • He stated the age to a potential purchaser. The purchaser went away for a week so that he could think about it. • He then came back and purchased the motorcycle. • The second time round the age of the vehicle was not mentioned. It turned out subsequently that the motorcycle was • older than the vendor had originally stated. • But the CoA held that the lapse of one week between the time of purchase and the time of the misstatement meant that it was not a warranty of the contract. • Importance and lapse of time may be related, i.e. the lapse of time may be used as evidence to indicate that the statement was not that important. • In order to determine whether a representation is a term of a contract, you adopt the intelligent bystander test, i.e you ask what a reasonably intelligent bystander would have inferred from the conduct and statements of the parties. To help in this task, you should consider: • Inducement - was the statement made with the intention (and effect) of inducing the other party into the agreement? • Expected Competency - was the statement made by someone who would be expected to have the competency to make such a statement? • Importance - was the statement important to one or other of the parties? • Lapse of time - was there a considerable lapse of time between the making of the statement and the finalisation of the contract? II. The Parol Evidence Rule Why do we put contracts in writing? What happens when we do so? The Parol Evidence Rule When a contract has been reduced to writing, it is presumed to be impermissible to introduce extrinsic evidence to add to, vary or contradict its terms (i.e.“parol evidence” is inadmissible). • This rule is a highly controversial old common law rule, and courts have invented a number of exceptions to it over the years. Expectation 1 Parol evidence can be introduced to establish whether there is a contract in the first place and whether there is more than one contract. Pym v Campbell (1856) 6 El & Bl 370 • John Pym invented a machine for “crushing, washing and amalgamating”. • Contra proforentum rule is likely to only apply in cases where there is clear inequality of power between the two sides. • In other cases, other interpretive principles or evidence from the factual matrix may be used to resolve ambiguities and vagueness. Larry Silverstein • Acquired the lease for the World Trade Centre on the 24th July 2001 • Had a series of insurance contracts with different insurers. • Entitled to maximum aggregate damages of $3.5 billion from “each and every loss or accident or occurrence or series thereof arising from one event” Was there one event or were there two events? A. There were two events: two separate collisions by two separate planes. B. There was one event: one coordinated terrorist plan and attack AIOI Nissay Dowa Insurance Company Limited v Heraldglen Limited and Advent Capital (No 3) Ltd [2013] EWHC 154 • Has clarified the current position. • Court applied the “unities doctrine”. In order to determine the number of events, look to the degree of unity between the time, space, cause and intention. • Court held that there the two collisions took place at different times and places (tower 1 vs tower 2) and had different causes (first plane, second plane). • The commonality of intention/purpose wasn’t enough. Exception 4 Parol evidence may be introduced to rectify a mistake within a written contract. Macklin & McDonald v Greacen & Co. [1983] IR 61 • The defendants agreed to sell a pub licence to the plaintiffs once the sale of the premises was completed. • It turned out that the pub in question had been demolished prior to this agreement. • Nevertheless, the plaintiffs sought specific performance of the agreement on the grounds that the licence was distinct from the pub. • The court held that the licence could not be separated from the pub. • Hence, the evidence that the pub had been demolished was relevant to the agreement. • He denied them the right to specific performance. Exception 5 Parol evidence can be introduced where the written document does not state the consideration, or where it does not state the full consideration (in cases involving the Statute of Frauds). Black v Grealy, Unrep HC 10 Nov 1977 • Black entered into an agreement with Grealy for the sale of land. • They agreed that £46,000 would be the exchange price, with £6,000 being paid up front as a deposit. • Under the terms of the Statute of Frauds 1695 all contracts for the sale of land must be evidenced in writing. • So they produced a written memorandum stating that the purchase price was £40,000 • This memorandum was signed by Black. • Grealy later tried to back out of the deal. His lawyer argued that because the memorandum did not reflect the true purchase price, it was not compliant with the requirements of the Statute of Frauds. • Costello J allowed the evidence of the oral agreement to be admitted to establish the true purchase price. • He held that the Statute of Frauds could not, itself, be used as an instrument of fraud. Hence, Grealy had to live up to his side of the deal. Exception 6 Parol evidence may be introduced to establish that a custom exists in a certain trade. Wilson Strain Ltd v Pinkerton (1897) 31 ILTR 86 • A bread roundsman sold bread on credit terms to different vendors. • He was allowed to adduce parol evidence to indicate that it was a custom within the bakery trade in Belfast for the employer to take over the roundsman’s debts, if the roundsman left employment. • In other words, it was not the custom to hold the roundsman personally liable for debts incurred during the course of business. • If the written contract expressly denies the custom, then parol evidence cannot vary the express terms. • It is really only where the written contract is silent on the matter covered by the custom that it makes a difference. Exception 7 Parol evidence may be adduced to show that the written document is not the full agreement, i.e. that the contract is formed from several documents or is part-oral and part-written. Evans and Son v Andrea Mezario Ltd [1976] 1 WLR 1078 • Evans and son had contracted with the defendants for the carriage of goods by ship to England. • The defendant’s standard terms and conditions stated that they could transport the goods above deck or below deck. • This was stated in a written contract signed by the plaintiffs. • But the plaintiffs had also agreed (orally) with the defendants that the goods in question would be transported below deck. • The goods were damaged in storm while being transported. They were above deck at the time. • The plaintiffs sued for breach of contract. The defendants tried to argue that the parol evidence rule excluded the terms of the oral agreement. • The court found for the plaintiffs. They said the contract was partly oral and partly written, because this more truly reflected the intention of the parties. The Exceptions 1. To prove whether the contract existed in the first place or whether there was more than one contract. 2. To explain essential background circumstances. 3. To address any vagueness or ambiguity in the written terms. 4. To rectify a mistake in the written contract. 5. To establish the consideration where it is not stated, or to establish the true consideration (for the purposes of the Statute of Frauds). 6. To establish some custom that is unique to a particular trade. 7. To show that a contract a document does not constitute the full agreement (e.g. the agreement is partly-written or partly oral). Note: this probably isn’t even a full list of the exceptions to the rule. Does the parol evidence rule have any continuing value (given all these exceptions)? • Probably best to view it as a presumption, not as a hard and fast rule. III. How can you ensure that a term is incorporated? Ewan McKendrick - Contract Law: Texts, Cases and Materials “Many businesses spend significant sums of money on legal advice in relation to the drafting of their standard terms of business but then adopt a surprisingly lax approach when it comes to ensuring that these standard terms are incorporated into the contracts they conclude. ” Poseidon Freight Forwarding Co Ltd v Davies Turner Southern Ltd [1996] 2 Lloyd’s Rep 388 The Incorporation Rule In order to ensure that a standard term gets incorporated into a contract, one of three methods can be adopted: (a) get the other party to sign a document stating that term; (b) put the other party “on notice” as to the existence of that term; or (c) rely upon a course of dealing or custom in a given trade. (a) Incorporation by signature L’Estrange v F. Graucob [1934] 2 KB 394 Thornton v Shoe Lane Parking [1971] 2 QB 163 • Thornton was using a multi-storey car park. There was a general “vehicles parked at owner’s risk” sign at the entrance. • When he pressed the button on the vending machine, he received a ticket for the car park. • On the back of the ticket, it was stated that the terms and conditions of the contract were to be found on notices posted inside the car park. • One of the terms and conditions on these notices stated that the car park disclaimed liability for damage to property and for personal injury. • Thornton was injured on the premises and tried to sue for damages. The car park tried to make use of the exclusion clause. • But the CoA rejected this and found in favour of Thornton. • They held that the defendants had not brought the term to the attention of Thornton prior to the formation of the contract. Lord Denning - Thornton v Shoe Lane Parking “The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it. But it will remain unmoved. He is committed beyond recall. He was committed at the very moment when he put his money into the machine. The contract was concluded at that time.” What if you don’t pay at the point of entry? (As is more common) • Contract is still probably complete at the moment you receive the ticket because you then enter into a binding commitment to pay... • ...unless the car park allows some period of grace (e.g. 15 minutes), Second, the relevant term must be contained in a document that is intended to have contractual effect, i.e. not just a receipt. Chapleton v Barry UDC [1940] 1 KB 532 • The claimant had hired two deckchairs and received two tickets from the council’s beach attendant in return for payment. • These tickets stated that “the council is not liable for any accident or damage arising from the hire of the chair”. • The claimant assumed the ticket was just a receipt and never bothered to read the back. • The chair collapsed and the claimant was injured. • He sued and the council tried to argue that they were excluded from liability. • The court held that the exclusion clause had not be brought to the attention of the claimant because it was unreasonable to assume that the ticket contained contractual terms. Third, reasonable steps must have been taken to bring the term to the attention of the other party. ...This is the most important and contentious requirement. The old “ticket cases”... • Tickets routinely set out conditions of carriage or business... • ...or refer to the existence of such conditions... • ...but are infrequently read by customers. Are customers, nevertheless, on notice as to the content of these conditions? (Constructive notice) Parker v South Eastern Railway (1877) 2 CPD 416 • Mr Parker wanted to leave his bag at a cloakroom in Charing Cross Station, run by the defendants. • When handing over the bag he was presented with a ticket. The ticket stated that the railway company would not be liable for the theft of items greater than £10 in value. • Parker saw that the ticket contained writing, but assumed it was just a receipt. Consequently, he never bothered to read the exclusion clause. • His bag was stolen and it contained items greater than £10 in value. The question was whether Parker was on notice as to the existence of the exclusion clause. • At trial, a jury found in Parker’s favour on the grounds that it was reasonable for him not to have read the ticket. • The case made its way to the Court of Appeal. • The CoA did not reach a definitive conclusion, holding by majority that there should be a retrial. • Nevertheless, the majority did try to clarify what the legal rule should be in a case like this. • They held that where notice has been given, but the other party is unaware that it has been given, the term will not be incorporated... • ...but if the other party is aware that the writing might contain conditions, then they may be incorporated even though the party didn’t know the precise content. Parker Rule • Courts should ask three questions: o Did the party know the content of the term/ condition? If yes, then they are bound by it. o Did the company (proferens) give any notice as to the existence of the condition? If no, then it cannot be incorporated. o If notice was given, but the party was unaware of the condition, the question becomes: did the proferens do what was reasonable to bring their attention to the existence of the term? This approach was applied in subsequent cases Richardson, Spence and Co v Rowntree [1894] AC 297 • Passenger on a ship was given a folded ticket, with no visible writing when presented in this form. • When opened up, the ticket contained many conditions of carriage, including an exclusion clause for personal injury and loss of baggage. • But the passenger never read these terms and conditions. • He was injured and tried to sue for damages. The company tried to rely upon the exclusion clause. • It was found that the passenger did not know what the conditions were and that by presenting the ticket to him in this manner, the company did not reasonably bring the conditions to his attention. Ryan v Great Southern and Western Rly (1898) 32 ILTR 108 • Plaintiff purchased a ticket from the defendant company. His bags were lost on the trip and he tried to sue for damages. • On the ticket, in minute print, it was stated that the plaintiff would be bound by the company’s standard terms and conditions. • Those terms and conditions included an exclusion clause for lost baggage in certain cases. • The plaintiff never read the small print on the ticket. • But, in any event, the actual terms and conditions were not stated on the ticket. The plaintiff would have to mount a “special inquiry” to find out what they were. • In these circumstances, the court found that the terms and conditions had not been incorporated into the contract. • Insufficient steps had been taken to give the plaintiff notice. • But Irish courts haven’t been inconsistent on this point... Early v Great Southern Rly [1940] IR 414 • Same set-up as in the previous case, only this time the exclusion clause tried to avoid liability for personal injury. • The plaintiff was injured on his journey. • The ticket referred to the company’s special conditions, but these conditions were not even available for inspection at the train station. • Nevertheless, the court found in favour of the defendants: they were entitled to rely upon the exclusion clause. Shea v. Great Southern Railways Co. [1944] 1 Ir Jur Repr 26 • Exclusion of liability clause was on a notice that was obscured by a door; but was referenced on a receipt. • Defendant was entitled to rely on this clause despite these problems. • The approach in Parker has been deemed to be lacking in some quarters, and has probably been updated by an approach taken in the Interfoto case. Interfoto Picture Library v Stiletto Visual Programmes [1989] QB 433 • The defendants were an advertising agency and were looking for some photographs from the 1950s they could use in a presentation for a client. • They contacted the plaintiffs by telephone asking them to send on some sample photographs. No particular sums of money or terms and conditions were discussed at this stage. • The plaintiffs duly sent the defendants 47 sample photographs. They did so in a jiffy bag with a delivery note stating a number of terms and conditions. Delivery Note Conditions - Interfoto Picture Library “All transparencies must be returned to us within 14 days from the date of posting/ delivery. A holding fee of £5 plus VAT per day will be charged for each transparency which is retained by you longer than thesaid period of 14 days...[unless somefurther agreement is reached]. ” The need for consistency is illustrated by the following case... Transporting a car from the Isle of Islay to the mainland? McCutcheon v David MacBrayne [1964] 1 WLR 430 • McCutcheon asked his brother in law, McSporran, to arrange for his car to be shipped to the mainland. • McSporran took the car to the defendant’s office and was quoted a price. • He paid the price, was given a receipt, and handed over the car. • McSporran had shipped items with the defendants before, and had sometimes been asked to sign a “risk note”, exempting them from liability in the event of an accident. • McCutcheon had also shipped items with the defendants and, on the four occasions he had done so, had signed a risk note. • On this particular occasion, no such risk note was presented or signed. • The ship sank on its journey to the mainland and the car was destroyed. • The defendants tried to argue that their exemption clause should be incorporated into the contract by a regular and consistent course of dealing. • The House of Lords found against the defendants. • There wasn’t sufficient consistency in the previous dealings. As Lord Pearce put it “when the conduct is not consistent, there is no reason why it should still produce an invariable result”. • Other judges felt that the defendants also needed to prove that the plaintiff knew the terms and conditions on a previous occasion. • But they could not prove this. He may not have read them. The need for regularity is illustrated by the next case... Hollier v Rambler Motors Ltd [1972] 2 QB 71 • Hollier had placed his car at the defendant’s garage for repairs. • He had done this on three or four occasions over the previous five years. • On at least two (and possibly all) of these occasions he was asked to sign an invoice stating that the garage would not be liable for any damage caused by fire. • On this particular occasion he did not, and the car was damaged by fire. • The CoA held that there wasn’t a sufficient degree of regularity in the course of dealing to warrant incorporation of the exclusion clause. • The defendant had contracted with the defendants at a frequency of less than one contract per year. • But it is not impossible for a course of dealing to be sufficiently consistent and regular... J. Spurling v Bradshaw [1956] 1 WLR 461 • Spurling owned a warehouse in East London. • Bradshaw had seven barrels of orange juice that he wished to store at the warehouse. • When doing so, he received a contract stating that the warehouse would not be liable for any damages caused by negligence of its staff. • The orange juice was damaged through negligence in storage. • Bradshaw tried to argue that the exclusion clause was not incorporated into the contract because he had not been given reasonable notice. • The CoA (Denning’s judgment) found against Bradshaw on two grounds: First, they felt that there had been reasonable notice. • Second, they felt that even if there hadn’t been on this occasion, Bradshaw had contracted with the defendant’s on seven previous occasions and on each of those occasions the exclusion clause was included in the contract. • Consequently, there was incorporation by a course of dealing. Second, in particular when relying on a custom, the parties must be in the same industry and there must be equality of bargaining power between them. British Crane Hire Corporation v Ipswich Plant Hire [1975] QB 303 \ • The parties were both in the construction industry. • The defendants urgently needed to hire a crane from the plaintiffs. • The hiring agreement was reached over the telephone, but nothing was said about conditions of hire. • The crane was received and the plaintiffs subsequently sent on their standard terms and conditions. • Unfortunately, by this time, the crane had sank into marshy ground on the construction site. • The plaintiffs tried to rely on one of their standard terms and conditions stating that the defendants would be liable for the costs of recovering the crane in such an event. • The CoA held they were entitled to do so. Not because of a regular and consistent course of dealing but because of a custom within the industry. Lord Denning - British Crane Hire Corp v Ipswich Plant Hire “There were thus only two transactions many months before and they were not known to the defendants’ manager who ordered this crane. In the circumstances, I doubt whether those two would be sufficient to show a course of dealing.” “But.. the parties were both in the trade and were of equal bargaining power. Each was a firm of plant hirers who hired out plant.” “...From the evidence it is clear that both parties knew quite well that conditions were habitually imposed by the supplier of these machines: and both parties knew the substance of those conditions.” • This approach has been explicitly followed in Ireland. Lynch Roofing Systems v Christopher Bennett and Son [1999] 2 IR 450 • There was a dispute over a roofing contract. The plaintiffs were sub-contractors for the defendants. • The plaintiffs issued proceedings against the defendants; the defendants tried to block (“stay”) those proceedings. • They did so on the grounds that standard industry contracts provided for arbitration prior to court proceedings. • The problem was that, although the defendant had said they would use a standard industry contract, attention had not been drawn to the arbitration clause. • Court found in favour of the defendants, arguing that both parties were in the same trade and should be aware of the customary conditions in the standard contracts. The most important Irish case… James Elliott Construction v Irish Asphalt [2014] IESC 74 “Pyrite Heave” - Case • Infill provided by Irish Asphalt was found to be defective. It expanded after construction, causing significant structural damage to the Ballymun Youth Centre. Limitation of Liability Clause • Irish Asphalt Ltd. had a standard set of terms and conditions that limited their liability in the event of damage to the cost of replacement. • They argued that this had been incorporated into the contract. 1. Incorporation by signature argument: Construction foreman had signed 1,190 delivery dockets which made reference to the standard terms and conditions. Rejected by SC Rule: Signed document had to be one that a reasonable person would understand to have contractual effect; had to refer to a specific or well-known set of T and Cs; and had to be provided prior to contractual formation. Application: Delivery dockets failed to satisfy these three conditions. 2. Incorporation by Notice Argument: Parties had previous dealings and credit notes sent to James Elliott’s accounts department set out the limitation clause. The 1,190 delivery dockets provided reasonable notice. Rejected by SC