Teleological Interpretation and Land Law

AuthorMark Attew
DOIhttp://doi.org/10.1111/j.1468-2230.1995.tb02043.x
Publication Date01 Sep 1995
LEGISLATION
Teleological Interpretation and Land Law
Mark
Attew*
It may also
be
presumed that contracts for the sale or other disposition of an interest in land
(including leases)
fall
outside [the] provisions of [the Unfair Terms in Consumer Contracts
Directive]
(Chiffy
on Contracts,
27th ed,
1994,
vol
1,
at
14-091).
The effect
of
European Community law on English law has been uneven. Lord
Denning’s ‘incoming tide” has not flowed into all areas of English law.
Community law has, for example, had little impact on English land law. This is
reflected in the most recent edition of Cheshire and Bum’s
Modern
Law
of
Red
Property,
the index of which contains no entry for ‘European Community.’ In
future, however, Community law will have an impact on English land law, albeit a
fairly modest one.* The Directive on Unfair Terms in Consumer Contracts3
(‘the Directive’) was adopted on
5
April 1993. In the United Kingdom, the
Directive has been implemented by the Unfair Terms in Consumer Contracts
Regulations4 (‘the Regulations’), which came into effect on 1 July 1995. The
Regulations concern contracts concluded between consumers on the one hand and
business sellers of goods or suppliers of goods or services on the other.5 If terms
in such contracts have not been individually negotiated and are found to be unfair
within the meaning of the Regulations, then those terms are unenforceable by the
seller or supplier.6 However, both the Directive and the Regulations
are
silent as
to whether land contracts involve a sale of goods or a supply of services, and hence
fall within the scope of the Regulations. This omission has created ~ncertainty.~
The purpose of this note is to argue that the Regulations do apply to land contracts.
*Trainee Solicitor, Linklaters
&
Paines, London.
The author would like to thank Ian Rodwell, Howel Lewis and Christopher Bright of Linklaters
&
Paines
for their helpful comments.
1
See
Bulmer
v
Bollinger
[1974] 2 All ER 1226, 1231.
2
It should be added that lawyers dealing with property transactions in practice are already familiar with
the effects of European Community legislation, particularly in the environmental and tax areas (see
also
n 22
infra).
In
this note, the term ‘land law’ is used to mean the system for the creation, sale
or
other disposition of interests in land,
or
the grant of rights over land. The term ‘land contracts’ is used
to mean contracts effecting such creations, sales, dispositions
or
grants.
3
OJ
1991 L95/29.
4
SI
1994/3159.
5 Regulations 2(1) and 3(1). Article l(1) of the Directive indicates that ‘unfair terms in contracts concluded
between a seller
or
supplier and a consumer’ fall within the Directive’s
scope,
without limiting such
contracts to the sale of goods
or
the supply of services. However, it
can
be
argued that it is clear from
other
parts
of the Directive that it is intended
to
apply only to sales of goods
or
supplies of services. The
Directive’s sixth recital indicates that the Directive was adopted ‘to facilitate the establishment of the
internal market and
to
safeguard the citizen
in
his
role as consumer when acquiring goods and services.’
References to goods and services are found in other recitals to the Directive. In addition, Article 4(1) of
the Directive provides that the unfairness of a contractual term
shall
be
assessed ‘taking into account the
M~UE
of the goods
or
services for which the contract was concluded.’ If the application of the Directive is
not limited to contracts for goods and services, then it is not clear why Article 4 is limited in
this
way.
6 For a fuller discussion of the Regulations, see Dean, ‘Consolidation
or
Confusion?’
NU,
13 January
1995
8,
3 February 1995 153.
7
The UK government has implemented the Directive using a method sometimes described as ‘copy-
out’: this involves transposing the terms of the Directive into the Regulations, subject only to limited
change and development (although see n
5
supra
for one example of how the Regulations depart from
0
The Modern Law Review Limited
1995
(MLR
585,
September). Published by Blackwell Publishers,
108
Cowley Road, Oxford
OX4
1JF
and
238
Main
Street,
Cambridge, MA
02142,
USA.
696

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