When a contract is written, there is a basic presumption that the written document contains terms of the contract[151] and that when commercial parties sign any term mentioned in the document[152] unless the term is found to be abusive, the signed document is merely an administrative document or under the very limited defence of non-factum. [153] The rules differ in principle for employment contracts[154] and consumer contracts[155] or where a legal right is exercised[156] and, therefore, the signing rule plays an important role in commercial trade when companies attach great importance to security. If a statement is a term and the contractor has not signed a document, the terms can be inserted by reference to other sources or by a transaction. The basic rule described in Parker/South Eastern Railway Company[150] is that an appropriate termination of a term is necessary to hire someone. Here, Mr. Parker left his coat in the locker room at Charing Cross station and received a ticket indicating that liability for losses was limited to $10. The Court of Appeal referred this to the hearing for a jury (as at the time) to determine. The modern approach is to add that when a term is particularly painful, more attention should be paid with greater clarity. Denning LJ in J Spurling Ltd v Bradshaw[157] noted that “some clauses I have seen should be printed with red ink on the face of the document with a red hand that shows it before the notice can be considered sufficient.” In Thornton v Shoe Lane Parking Ltd,[158] a parking ticket referring to an indication inside the car park was not sufficient to exclude the responsibility of parking for personal injury suffered by customers on its site. In Interfoto Picture Library Ltd v Stiletto Ltd,[159] Bingham LJ found that a note in a Jiffy bag containing photographic transparencies about a late refund fee (which, after only one month, would amount to US$3,783.50 for 47 transparencies) was too heavy to be recorded without clear notice.
On the other hand, in O`Brien v MGN Ltd[160] Hale LJ stated that the Daily Mirror`s failure to say in each newspaper that if there were too many winners in its free draw for $50,000, that there would be another draw, was not as painful for disappointed “winners” as to prevent the inclusion of the term. It may also be that a regular and consistent course of relations between two parties may lead to the inclusion of the terms of previous transactions in future transactions.