‘as to the terms on which the Claimants supplied their original analogue photographic transparencies to the Defendants’
‘It has been a standard provision within the terms of UK photographers and photo libraries that the client will be obliged to pay liquidated damages if it loses or damages irreparably the photographer’s transparencies. Indeed it is a standard term for the industry around the world.’
‘To my knowledge all Picture Libraries in the UK, US, Europe and Australasia supply their images upon the same or similar terms and have done so for the past 30 or more years.’
“These images have been sent on loan. Discrepancies should be advised immediately. Images must be returned, or reproduction licence agreed, by the Date for Return below.”
“However, after strenuous negotiations between ourselves and the German Insurance Company, we were able to agree compensation payments of£290.00 per picture which amounts to£30500.00 for the whole shipment. We feel that this represents a fair offer, particularly in view of the large number of GPL pictures we publish month after month. Like you, we are keen on continuing our good business relations and for that reason I hope that you are able to accept this offer.”
‘In any event, I knew our colleagues in Germany were aware of the standard business conditions which appeared on the photographers’ delivery notes, as they frequently received them.’
‘You must pay the rental specified in the delivery note until we receive the Images back.’
“As I have not supplied transparencies to the magazine for some years now, please will you read the conditions of the delivery note. If they are acceptable I shall look forward to a signed delivery note in acknowledgement of the safe arrival of the package. If the magazine is unable to accept the terms and conditions, please arrange for the return of the transparencies … .”
“An alternative argument for the defendants, in this court as below, was to the effect that any contract between the parties was made before the defendants knew of the existence of the delivery note viz, either in the course of the preliminary telephone conversation between Mr. Beeching and Miss Fraser, or when the jiffy bag containing the transparencies was received in the defendants’ premises but before the bag was opened. I regard these submissions as unrealistic and unarguable. The original telephone call was merely a preliminary inquiry and did not give rise to any contract. But the contract came into existence when the plaintiffs sent the transparencies to the defendants and the defendants, after opening the bag, accepted them by Mr Beeching’s phone call to the plaintiffs at 3.10 on 5 March. The question is whether condition 2 was a term of that contract.”
“Turning to the present case, I am satisfied for reasons which Dillon L.J. has given that no contract was made on the telephone when the defendants made their initial request. I am equally satisfied that no contract was made on delivery of the transparencies to the defendants before the opening of the jiffy bag in which they were contained. Once the jiffy bag was opened and the transparencies taken out with the delivery note, it is in my judgment an inescapable inference that the defendants would have recognised the delivery note as a document of a kind likely to contain contractual terms and would have seen that there were conditions printed in small but visible lettering on the face of the document. To the extent that the conditions so displayed were common form or usual terms regularly encountered in this business, I do not think the defendants could successfully contend that they were not incorporated into the contract.”
“A separate issue arises, however, as between Grimsdale and SAPPA. There were three contracts between Grimsdale and SAPPA. They were oral. The learned judge found that there had been frequent prior transactions between them. There had been three to four deals a month during the previous three years. The practice had been that Grimsdale would sent a contract note to SAPPA either later on the day of an oral contract or on the day following. SAPPA would expect to receive such a contract note. It was routine practice. The same practice was indeed followed when SAPPA bought this type of material (cakes and meals) from London wholesalers. On the back of the contract notes there were certain terms or conditions. Mr. Golden who acted for SAPPA knew that there were such conditions though he had not read them. One term on the contract notes was as follows: “The buyer under this contract takes the responsibility of any latent defects.”
“Here, the parties were commercial companies. There had been a course of dealing in which at least 11 invoices had been sent giving notice that business was conducted on the IFF terms at a place on the document where it was plain to be seen. Mr. Zacaria knew that some terms applied. He knew that forwarding agents might impose terms which would frequently be standard terms and would sometimes or frequently deal with risk. He never sought to ask for or about the terms of business. The IFF conditions are not particularly onerous or unusual and, indeed, are in common use. In these circumstances, despite Mr. Gompertz’s clear and succinct argument to the contrary. I consider that reasonable notice of the terms was given by the plaintiffs. Putting it another way, I consider that the defendants’ conduct in continuing the course of business after at least 11 notices of the terms and omitting to request a sight of them would have led and did lead the plaintiffs reasonably to believe the defendants accepted their terms. In those circumstances it is irrelevant that in fact Mr. Zacaria did not read the notices. Accordingly. I consider that the learned Judge erred in his conclusion on the first issue and I would hold that the IFF conditions were incorporated in this contract”