CORRESPONDENCE

Date01 March 1970
Published date01 March 1970
DOIhttp://doi.org/10.1111/j.1468-2230.1970.tb01269.x
CORRESPONDENCE
THE
EDITWE,
The Yodern
Law Re&w,
Dear Sir,
Are
Collectivs
BargQinr
Contracts?
There have been
a
number of cases in recent times where the court has
had
to
choose between delving into the
recesses
of the parties’ minds in order
to discover an “intention” which never existed,
or
telling them something
about themselves which they never knew.’ One wonders what
is
the
purpose
of
this exercise. In
U&
v.
Got&*
Lord Denning stated that the intention
of the parties
“is
to be found by looking
at
what the
parties
said and did
in the situation in which they found themselves, and then asking: What
would reasonable people think about the provision? Would they regard it
as
intended to be binding?
This appears
to
be
Mr.
Clark’s position, and must be
criticised
as
being too vague
and
potentially capricious. The answer
to
Lord
Denning‘s question
is
that
frequently reasonable people
may
well differ. Some
may answer yea, others, nay. In
Qozcld
v.
Godd
itself, the county court judge
and Lord Denning arrived
at
the same conclusion;
two
other (eminently reason-
able!) members of the Court of Appeal reached the opposite
result!
A similar
divergence of judicial opinion exists in
Jones
v.
P&vatton.s
This exerdse in
counting the heads of reasonable people is about
as
scientific as
tossing
a
coin,
and is clearly unsatisfactory. The spectacle of
a
hypothetical person seeking a
non-existent intention is surely one which deserves
to
be exordsed from
our
law.
The real truth about the concept of “intention to
create
legal relations”
is
that it is constantly being used
as
a
mumbo-jumbo formula to enable one party
to
avoid the legal consequences of
a
breach of
an
agreement. If we must retain
the notion,
it
should be kept within clearly defined
limits,
lest commercial chaos
results. In particular, if trade unions wish to buy legal abstention, this should
be achieved by use of the honourable pledge clause,’ rather than relying on
legal fictions which have outlived whatever usefulness they ever had.
Mr.
Clark
seeks
the distinction between “an agreement not intended to
be legally binding” and
a contract which is not intended to be enforced
at
law.” This
is
really quite simple. If
I
sell
my house to my sister,
a
binding
contract exists; nonetheless, the likelihood of my enforcing
it
in
a
court of
law is remote. Should she decide
to
break the agreenent,
I
am
quite likely
to seek
a
social sanction
(e.g.,
complain to my mother
!)
rather than look
to
a
Iegal
remedy.
But the contract remains
a
valid one. Th’is
is
how the
col-
lective bargaining system in
this
country works. The parties in general rely
on their
own
built-in sanctions and procedures, rather than legal remedies.
But this does not mean that the latter are necessarily excluded.
I
have in my
possession the minutes of
a
joint standing committee of an employers’
association and
a
trade union.6 At the meeting, there was
a
dispute about
the meaning of
a
certain provision in
the
collective agreement, and the union
1
1969 done
saw
Jones
v.
Padaoatton
*[l969]
9
All
E.R.
616;
Memitt
V.
Memitt,
The Times,
May
15,
1969;
Ford
Motor
CO.
V.
A.E.F.
[1969]
‘2
Q.B.
903;
Gould
v.
Gould
[1969]
3
All E.R.
728;
Pettitt
v.
Pettitt
[19f59]
2
W.L.R.
966.
2
[1969]
3
All E.R.
728,
730.
3
[1969]
2
kll
E.R.
616.
4
Rose
and Frank
CO.
v.
Crmpton
d
BTOS.
Ltd.
[1W]
A.C.
445.
I
have seen
one
example of
this
in
recent-times,
and
doubtlees there are others.
nameless for the
moment.
5
The document
was
hamded
to
me
in
confidence,
so
the
parties
must
remain
288

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