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?
Report them while you’re walking home
Disclaimer: this is not legal advice and it is not guaranteed to be correct, complete or up-to-date
What you say about incorporation of clauses in a contract is quite right, however if you have not bought the gift voucher yourself then you will have to first establish that you have a contract with the store in the first place. I am not too sure how (assignment?).
Following that, you can try to show (as you did) that the expiry date was not incorporated into the contract, but I am not sure the law supports you there.
In Parker v South Eastern Railway (1877) it was mentioned that it is common knowledge that terms&conditions will be present on certain documents (such as tickets) that you get _after_ you have entered the contract. In Thompson v London Midland & Scottish Railway the conditions were deemed to be properly incorporated, even though the ticket only said “see back” and the back said “see conditions on timetable, available for purchase at 6d”.
I think it can be expected that people read what it says on the gift voucher.
A different matter would be if the terms were particularly onerous (Thornton v Shoe Lane Parking), such as a very short expiry date or some other unusual limitation.
My 2p
I’m very interested in this one. I have a gift voucher I was given a couple o fyears ago for a massage and facial at a local beauty parlour. I jut contacted them asking when I could use it and they have said their vouchers are only valid for a year and I can’t use it. I am pretty certain my partner would have told me if he had been told that were the case since this is a big luxury for us. So I’m guessing legally the voucher (which has NO conditions printed on it at all, certainly nothing about an expiry date) should still be valid legally.
@Jo – If there is nothing on the voucher to say otherwise, then you should probably insist that they accept it. Probably not worth going to court over – but there is no reason why the value of the voucher should suddenly vanish to their benefit. “Company policy” is completely irrelevant in this case.
*I am not a lawyer.