CORRESPONDENCE
| Published date | 01 January 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01257.x |
| Date | 01 January 1970 |
JAN.
1970
REVIEWS
117
represent
Zegm leges
of the concept of neutralisation,
or
whether they are
mere generalisations induced from
state
practice manifested in particular
treaties. If the former then how does this square with the authors’ argument,
in discussing definitions of neutralisation (p.
l),
that the concept is
a
relative
one?
It
L
surprising
that
the
statement “The
use
of force under present
international law
is
illegal except
in
self-defense” (p.
116)
should be made
without further comment.
Despite these criticisms the authors deserve credit for examining
a
neglected
subject, which may well be
an
invaluable, if supplementary, device for the
management of power in the international system. CLIFFORD
HALL.
CORRESPONDENCE
THE
EDITOR,
The
Modern
Law
Review.
Dear Sir,
In
a
short space
it
is impossible to deal with the many points raised in
Norman Selwyn’s article
((1969)
82
M.L.R.
377
(July)). But in case silence
be taken for consent
I
should like
to
deal briefly with three matters.
Whether they intended
to
make an
enforceable agreement
or
not must be tested “objectively,” not by what they
say about it afterwards. Ford’s advisers rightly judged that such evidence
was irrelevant
:
for the lamentable effects of allowing
a
defendant
to
lead such
evidence
at
the
last
moment
see
Loman
v.
Msrseyside Transport.’
The words
used may be decisive:
Ross
and Fmk
v.
Crmpton,2
Appleson
v.
Littls-
w00d8,~ Parker
v.
Clark.‘
If the words used
are
ambiguous
the
surrounding
circumstances and known customary practices can be looked
at:
Coward
v.
Motor
Insurers’ Bureaus
;
Edwarh
v.
Skyways.6
The hypothetical reasonable
man must be taken to have the same sort of knowledge as the parties to the
agreement in question-just
as
in
a
case of professional negligence the stan-
dard of knowledge required of the defendant is that of
a
competent professional
man, not that of
a
layman. Hence legal, academic and industrial opinion
was relevant
so
far
as
it might reasonably have been expected
to
be known to
the parties concerned.
It
may be, in fact,
that signature and even stamping prove very little. But
a
seal is something
more than a quasi-legal mumbo-jumbo designed to impress the other party
with the solemnity
of
an’obligation which is not really enforceable
at
all.
The simple solution which Mr.
Selwyn appears to avoid is that some collective bargains have contractual
force but most of them do not. Most negotiators on either side would be
astonished to be told that the agreements they made were contractually
enforceable as between themselves. But the famous Boot and Shoe Agreement
settled in
1895
by Sir Henry James, later Lord James of Hereford, clearly
shows on its face that it is intended
to
be legally enforceable. By Resolution
9,
if any provision of the agreement is broken by any manufacturer or body
of workmen belonging to the Federation
or
the Union
as
the case may be, then
if the offender is not expelled within ten days, “the Federation or the
National Union shall be deemed
to
have broken the agreement, award or
First, the intention of the parties.
So
is
the
form of the agreement.
Such devices are still very uncommon.
1
(1968) 3
I.T.R.
106; (1969)
32
M.L.R.
99.
2
“xq
a
K.B.
261.
8
[1939] 1
All
E.R.
464.
6
[1963] 1
Q.B.
259.
6
[1964] 1
W.L.R.
349.
4
[l960]
1
All
E.R.
93.
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