In Re Bassett
In Re Bassett 285 F.3d 882, 886 (9th Cir. 2002) is a leading case ruminating on the Uniform Commercial Code and the meaning of conspicuity, and casting aspersions on the mental states of attorneys who think that this gives them carte blanche to embark upon a CAPS LOCK extravaganza.
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The case concerns the ministrations of a domesticated (“mansuetae naturae”), yet flatulent, dog. On his collar he carried a warning “Careful: this dog will eat your sandwich and actually any other part of your picnic if you let it even the scotch eggs. He loves Scotch eggs. But they make him fart so. If it not nice when he farts. You will not enjoy it. No-one but the dog will enjoy it. PLEASE DO NOT LET THIS DOG HAVE YOUR SCOTCH EGGS.”
The reference to the dog’s flatulence was not in capitals. The plaintiff, an itinerant picnicker who encountered the dog by a lakeside summer camp in New Hampshire, allowed the dog to scarf some surplus scotch eggs. The plaintiff brought suit for permanent damage to her eyesight inflicted by series of pungent, canine Bronx cheers. It evidence it transpired the plaintiff had seen the collar warning, but had not read it properly. The defendant claimed the disclaimer was effective. The question came down to whether the warning was sufficiently “conspicuous”.
- “Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded. In determining whether a term is conspicuous, we look at more than formatting. [...] A sentence in capitals, buried deep within a long paragraph in capitals will probably not be deemed conspicuous. Formatting does matter, but conspicuousness ultimately turns on the likelihood that a reasonable person would actually see a term in an agreement. Thus, it is entirely possible for text to be conspicuous without being in capitals.”