Buckland v Bournemouth University Higher Education Corp: Statutory Constructive Dismissal and the Implied Term of Mutual Trust and Confidence
| Author | David Cabrelli |
| Date | 01 January 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00839.x |
| Published date | 01 January 2011 |
CONCLUSION
Article 4(2) of the1993 Directive sought to disting uish between a general power in
courts to review the fairness of standardterms in consumer contracts and a general
lack of any power to review the fairness of the bargain itself: as long as the terms
expressing it are transparent, this should remain an area for the parties’own‘auton-
omy’. However, its interpretation and application give rise to considerable di⁄-
culty. First, it remains unclear whether article 4(2) excludes from review a
category of contract terms or instead merely excludes a category of considerations
from the application of the review. Secondly, the proper viewpoint from which the
‘main subject-matter of the contract’ and the‘adequacy of the price and remunera-
tion . . . as against the s ervices or goods supplied i n exchange’ should be assessed
remains without a de¢nitive answer. Thirdly, even if these uncertainties are
resolved, there will remain di⁄cult questions as to how, if at all, the exclusion of
the review ofthe level of prices relates to termsby which a business seeks to impose
monetary charges on the consumer other than as (part of ) the main price. Unfor-
tunately, the present draft of the proposal for a directive which would replace the
1993 Directivedoe s notprovide any guidance as to the ¢rst two of these di⁄culties
and its attempt to regulate the third creates new uncertainties of its own.
Buckland vBournemouth University Higher Education Corp:
Statutory Constructive Dismissal and the Implied Term of
Mutual Trust a nd Con¢de nce
David Cabrelli
n
The decision of the Court of Appeal in Buckland vBournemouth University Higher Education Corp
[2010] EWCA Civ 121; [2010] ICR 908; [2010] IRLR 445 is one which has rami¢cations for the
common law and statutoryregulation of the contract of employment.However, its signi¢cance
does not end there, since it o¡ers wider insights into the relationship between common law and
statute law, as well as the English and Scots law of contract generally.
INTRODUCTION
In the case of Buckland vBournemouth University Higher Education Corp,
1
(Buckland),
the Court of Appeal handed down judgments which were of signi¢cance for the
doctrines of general English contract law, the law governing the common law
n
I would like to thank DouglasBrodie for reading over a previous draft of this note and for o¡ering
helpful comments.The usualdi sclaimer applies.
1[2010] EWCACiv 121; [2010] ICR 908;[2010]IRLR 445.
Buckland vBournemouth University Higher EducationCorp
122 r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
(2011) 74(1) 106^134
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