Recently I was asked:
I have a £50 gift voucher that expired in January – do you think they will still accept it?
My intuition is that the shop will try to refuse it, adamantly pointing to the expiry date “clearly printed” on the voucher. But have they any right to refuse it? Surely the writing is quite clear, the voucher has expired? In fact, UK contract law disagrees.
For a term to be effective it must be brought to the attention of the other party before the contract is entered into.
In the case of Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 where the motorist thought that he should not be bound by a term on a printed parking voucher disclaiming liability, the famous judge Lord Denning points out:
The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late. The contract has already been made. The ticket is no more than a voucher or receipt for the money that has been paid on terms which have been offered and accepted before the ticket is issued.
In a similar case (Olley v Marlborough Court Hotel [1949] 1 KB 532), a woman was a long-staying resident at a hotel. One day her fur coat was stolen while she was out, and she sued the hotel for negligence. On the back of the door to her room was the sign “The proprietors will not hold themselves responsible for articles lost or stolen, unless handed to the manageress for safe custody.”. It was shown that this term, being printed in the room, was not brought to her attention before the contract was made and so the hotel could not rely upon it. They probably hoped that most people would read the sign and not attempt to hold the hotel liable; and this is likely the case with the gift voucher.
So what would constitute the required level of notice? It is clear, that provided the expiry of a right to their performance under a contract is a legal term at all, which I think it is, then should the shop assistant bring it to your attention before the contract is made then then the writing on the back would only serve as a reminder to what you have agreed.
In a related case where a company wished to exempt itself from all liability for damage to orange juice stored in its warehouses, Denning made his now-famous statement:
This brings me to the question whether this clause was part of the contract. Mr. Sofer urged us to hold that the warehousemen did not do what was reasonably sufficient to give notice of the conditions within Parker v South Eastern Railway Company. I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.
So there you have it. If you have any ‘expired’ gift vouchers lying around I suggest you redeem them. I wonder how much the companies make each year in discarded vouchers from the people’s presumption that the term holds?