Passenger Charges Schemes 1952–3 and The Voice of The Consumer
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb00258.x |
| Date | 01 March 1954 |
| Published date | 01 March 1954 |
PASSENGER CHARGES
SCHEMES
1952-3
THE VOICE
OF
THE
CONSUMER
AND
THE
problem of the imposed contract,' that is, of the contract
concluded between parties of unequal bargaining power, is one
which has occupied our social-legal system for many centuries. A
full study of the treatment of imposed contracts is not possible
here, But, by way of background to the present paper, the reaction
in society and at law stimulated by the existence
of
imposed con-
tracts may be very briefly outlined. At least four major methods
of
redressing inequality in bargaining power have developed.
(1)
There has been the organisation of parties, as in the case
of
employers' associations and trade unions.
(2)
Direct and diverse statutory intervention has occurred, like
the usury laws of the fifteen and sixteenth centuries, the Carriers
Act,
1830,
or
the Hire Purchase Act,
1988.
(8)
In the courts, there has grown up,
so
far, judicial control of
broadly the following kinds
:-
(a) the simple rescission of contracts at common law for duress,
or
their rescission, with
or
without terms, in equity
on
grounds of undue influence, surprise
or
unfair advantage
;
(b) the displacement
of
imposed, written terms by a misrepre-
sentation as to their nature
or
scope4;
(c) the enforcement of
a
prior oral warranty in place of written
terms formally agreed to later
ti
;
(d) the use of the idea of the fundamental breach to displace
exemptive clauses,
as
in
Alexander
V.
R.
E.s;
(e) the vigorous use of the canon of contractual interpretation,
that a contract is, in case of ambiguity, to be construed
against the party relying on it; as,
e.g.,
in
Canadian
S.
S.,
Ltd.
v.
The King
I;
Minister
of
Materials
v.
Steel
BTOS.,~
and recent estate agent cases
'
;
1
See,
generally, F'rausnitz's pioneer work in England,
The
Standardicxtion
of
Commercial Contracts
:
also Friedmann,
Law and Social Change
in
Contem-
porary Britain,
Chap.
2.
2
e.a.,
Eoans
v.
Llewellin
(1787)
2
Br0.C.C. 150;
Willans
v.
Willans
(1809-10)
16Ves. 72.
3
e.g.,
Wood
v.
Abney
(1818j
3
Medd. 417;
Fry
v.
Lane
(1888)
40 Ch.D.
312.
4
Curtis
v.
Chemical Cleaning
d
Dyeing
Co.
119511
1
X.B. 805.
5
Couchman
v.
Hill
[1947]
K.B.
554;
Harling
v.
Eddy
119511
2
X.B. 739.
6
[1951]
2
X.B.
882.
See
also,
Smeaton Hanscomb
v.
Sctty
[lo531
1
W.L.R.
7
[1952] A.C. 192.
8
[1952]
1
Lloyd's Rep. 87.
9
See
Prof.
L.
C.
B.
Gower's discussion
of
this trend in five cases concerning
estate agents' commission notes in
13
M.L.R. (1950) 491. But, the Achilles
heel of
this
judicial method was successfully exploited in
"Tinder
v.
Haggir
r19rjll
W.N.
416.
Cf.,
in
the
field
of
sale
of
goods,,
L'Estrange
v.
Graucob
[1934]
2
K.B.
394.
1468,
1470.
119
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