“Omne Ignotum Pro Magnifico?”
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00624.x |
| Published date | 01 July 1960 |
| Date | 01 July 1960 |
| Author | P. R. H. Webb |
446
THE
MODERN
LAW
REVIEW
VOL
as
buyer’s particular purpose when acquiring a motor-car,
it
was said,
was to use
it
as a means of transport. Generally speaking,
it
is
impossible in the nature of things for the seller of a motor-car to say
that the particular purpose of the buyer was not made known to
him by implication. To meet this difficulty the above clause was
inserted in the contract, but the court held that although couched
in the terms of a contractual promise the words were simply a
statement by the hirer that he had not done something in the past;
in a
proper
case that could give rise to an estoppel, but
it
was
certainly
no
promise.
It
is doubtful whether this argument was
necessary at all, in view of section
8
(3),
to
be considered presently.
One wonders what would have been the result
if
the buyer had
not been a housewife who wanted the car to ease her shopping
expeditions, but a young man keen
on
rallies and endurance tests,
and
if
the car had been roadworthy but unfit
for
the special require-
ments of the buyer. In such circumstances the particular purpose
of the purchase would not have been obvious to the seller, and the
exemption clause might be of some assistance to the seller.
Not of course of great assistance, for
in
one important respect
the Act goes beyond the requirements of the common law.
A
long
line of cases has established that a term
in
a standard contract must
be brought home to the other party, but section
8 (8)
of the
1988
Act provides that in hire-purchase agreements to which the Act
applies an exemption clause must be
“
brought to the notice of the
hirer and its effect made clear to him.”
In
a case of the kind
con-
templated in the preceding paragraph the seller would have to draw
the young man’s attention to the clause and make clear its effect.
But neither are salesmen necessarily articulate teachers
of
law
nor
“
never-never
”
buyers receptive students,
so
that the burden of
proof necessary to satisfy the court that the effect of the exemption
clause has been made clear will be very difficult to discharge.
This is actually borne out by another feature of this case, con-
firming that business men may be blissfully ignorant
of
the law
relating to their everyday business.
On
receiving the plaintiff’s
complaint about the unroadworthiness of the car the defendants
replied that they were not concerned with the quality
of
the
goods;
they were acting purely as bankers! The court preferred to think
that this statement was ignorant rather than dishonest.
0.
C.
Gne.
“
Om
IGNOTUM
PRO
MAGNIFTCO
?
”
BEALE,
in his
Treatise
on
the
Conflict
of
Laws,
states
:
“
If
the law
of the forum does not provide a form
of
action appropriate for the
enforcement of the foreign right the action may not be main-
tained.” Wolff, commenting
on
this statement, remarks
:
“
The
1
(1935),
Vol.
3,
p.
1631,
5
608.1.
To continue reading
Request your trial