Intoxicated Consent in Rape: Bree and Juror Decision‐Making

Date01 March 2008
DOIhttp://doi.org/10.1111/j.1468-2230.2008.00692.x
Published date01 March 2008
principalswhose businesses are very lucrative and whowill have to pay substantial
compensation to their agents upon termination of the agency agreements. The
intervention by the Wine Federation of Australia only serves to highlight the
nub of this issue namely the situation where agents persuade their contacts to
switch over to the new principal. The impact of the ruling will be fully ascer-
tained over the course of the next few monthsbut it is very likely that principals
will take a more active stancei n negotiatingadequate termination clauses in com-
mercial agency contracts. In addition the ruling will promote the adoption of
indemnity clauses in agency contracts where the business of the principal is very
pro¢table. The rationale is that indemnity clauses in such cases will protect the
interests of the principal far more e¡ectively than the compensation system,
because of its one year cap.
CONCLUSION
The House of Lords has conclusively ruled that the correct method to be applied
when calculating compensation under Regulation 17 is to award the value of the
agency at the date of terminatio n.This reali stic and commercial decisio n has brought
much needed certainty to this aspect of the law. Parties to commercial agencyagree-
ments are nowcle aron how compensation is to be calculated under the Regulations.
This decision also ensures that the interests of commercial agents upon termi-
nation of the agency contract in England andWales are given the level of protec-
tion precisely envisaged by the Directive.
32
The full impact of this ruling on the market practice in England and Wales
will be seen in the coming months but it is very likely that this ruling will
encourage a more widespread adopt ion of the indemnity system i n commercial
agencycontracts, especially where the principal has a thriving business.
Intoxicated Consent in Rape: Bree and Juror
Decision-Making
Philip N. S. Rumney
n
and Rachel Anne Fenton
nn
The article examines the recent Court of Appealjudgment in Bree, in which the courtco nsidered
the guidance that should be given to a jury when the complainant is intoxicated at the time of an
alleged rape. As well as analysing the reasoning of the court in Bree, the judgment is placed
in context by examining factors,such as social attitudes, that in£uence juror decision-making in
rape cases. It also examines the suggestion made bythe court i n Bree that further law reform in
this area would represent ‘patronising interference’ in the lives of women.
32 The Directive has two aims: to harmonise the laws of each Member Stateo ncommercial agency
agreements; and to enhance the position of the commercial agents towardstheir principals.
n
Reader,Law School, Universityof the West of England.
nn
Senior Lecturer, Law School, Universityof the West of England.
Philip Rumney and Rachel Anne Fenton
279
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
(2008) 71(2) 271^302

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