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A party relying on a particularly onerous or unusual term in its own standard conditions must fairly bring it to the other party attention when the contract is made, or the term is not incorporated, as Interfoto shows, so an onerous condition buried on the reverse of a quotation, or not referred to on its face, may be unenforceable

A party relying on a particularly onerous or unusual term in its own standard conditions must fairly bring it to the other party's attention when the contract is made, or the term is not incorporated. Consumer-protection rules largely do not apply to commercial contracts, which are governed by caveat emptor, but in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd the Court of Appeal held that an onerous holding-fee condition that was not drawn to attention did not form part of the contract, and the charge was reduced. The principle reaches construction: in Worksop Tarmacadam Co Ltd v Hannaby a re-measurement clause on the reverse of a tender that appeared to offer a lump sum was too vague and onerous to bind without specific attention, so the contractor could not recover for unforeseen ground. And in P4 Ltd v Unite Integrated Solutions a retention of title clause on the reverse of a faxed quotation, not referred to on the face, was not incorporated. An onerous condition buried on the reverse of a quotation, or not flagged on its face, may be unenforceable.