Lord Denning MR was arguably the most important English judge of the twentieth century. As first-year law students at university, IP Draughts and his fellow student, Andy Livesey, sent Lord Denning a telegram to congratulate him on his 81st birthday, and received a very nice letter in reply.
In the area of contract drafting, one of the more striking of Lord Denning’s judicial comments was about the need for a “red hand” in the margin of a contract, to point to a one-sided contract term. This comment was made, obiter dictum, in the case of J Spurling Ltd v Bradshaw  EWCA Civ 3. What he actually said was:
I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which 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.
In practice, this comment has not led to a proliferation of marginal manicules (the printer’s name for a pointing hand) in English law contracts. Lord Denning’s comment has largely been ignored by contract drafters, and can be viewed as a historical curiosity. Sometimes, IP Draughts includes a warning statement at the beginning of a set of terms of sale, pointing out that the terms limit or exclude liability.
A beautiful, 1933 edition of Aesop’s Fables, printed by Oxford University Press, used them as a design feature.
In modern typography, the quickest way of finding them may be to look in the Wingdings font of Word.
The closest equivalent to Lord Denning’s red hand in US laws may be the requirement, under Article 2-316(2) of the Uniform Commercial Code, for disclaimers of certain implied warranties to be “conspicuous”:
…to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.
Conspicuous is defined in Article 2-103 as follows:
“Conspicuous”, with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. A term in an electronic record intended to evoke a response by an electronic agent is conspicuous if it is presented in a form that would enable a reasonably configured electronic agent to take it into account or react to it without review of the record by an individual. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:
(i) for a person: (A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language; and
(ii) for a person or an electronic agent, a term that is so placed in a record or display that the person or electronic agent may not proceed without taking action with respect to the particular term.
IP Draughts understands that many US States have adopted these provisions of the Uniform Commercial Code, but is not an expert on this subject and would welcome comments from US readers on how widespread is the adoption of this part of the UCC, and whether any other contractual provisions must be displayed in conspicuous text under US State laws.
In many US contracts, it is common to see disclaimers typed in BLOCK CAPITAL LETTERS, which would appear to comply with paragraph (A) quoted above. Very few drafters of US contracts make use of the other available methods of making text conspicuous within the above definition, such as use of bold text, or a different colour or font. IP Draughts would like to encourage US contract drafters to be more creative, and to consider using a manicule. This method is anticipated by the wording quoted above, which refers in paragraph (B) to “symbols …that call attention to the language”.