(The contractual agreement – and not just an agreement – in the strict sense of the word requires the existence of the three other elements mentioned above: (1) Reflection, (2) with the intention of creating a legally binding contract and (3) contractual capacity) When a contract is written, there is a basic presumption that the written document contains contractual terms. “ and when commercial parties sign documents, any term mentioned in the document binds unless the term is deemed abusive, the signed document is merely an administrative document or under the very limited defence of non is factum.  The rules differ in principle for employment contracts and consumer contracts or where a legal right is exercised 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 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 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, 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, 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 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.
In Hollier/Rambler Motors Ltd, the Court of Appeal found that Mr. Hollier, whose car was burned in a fire by a careless employee in the Rambler Motors garage, was not bound by a clause excluding liability for fire damage to the back of an invoice he has seen three to four times during visits over the past five years. It was not regular or consistent enough. However, in British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd Lord Denning MR found that a company that hired a crane was bound by a clause that made it pay for the recovery of the crane when it sank after only an earlier trade in the marshes. The negotiating power of the parties on an equal footing was particularly important.  Once an offer is made, the general rule is that the bidder must notify the offer to have a binding agreement.  The acceptance notification must indeed reach a point where the supplier can reasonably assume that it is willing to know, for example by not putting enough ink in its fax machine for a message to arrive in office hours.  This applies to all methods of communication, whether oral, telephone, telex, fax or e-mail, with the exception of the mail.