The Battle of Forms
| Date | 01 November 1979 |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01565.x |
| Published date | 01 November 1979 |
Nov.
19791
NOTES
01;
CASES
715
inactivity on the part of the whole body of shareholders constitutes a
corporate acquiescence in the irregularity which precludes recourse to
the court~.~O These alternatives are attractive because the actual
reasoning employed
to
decide the issue could encourage sharp practice.
As
the Department
of
Trade investigations into, to take just
a
few
examples, Ferguson and General Investments,*’ Peachey Properties.22
L~nhro.~~ London and County Sec~rities,~~ and the Lowson group
’’
amply document, the paradigm for corporate pathology
is
a board
dominated by a chief executive whose own financial interests are
co-minded with his company’s. At present the breaches of duty which
occur in such circumstances stand to be revealed;
Queenslund Mines
v.
Hudson
suggests that many such breaches can now be forestalled
or condoned by the simple expedient of obtaining the consent
of
boardroom colleagues who are often little more than ciphers. This is
an unwelcome prospect at
a
time when statutory reform of the
institutional structure of public companies seems increasingly remote.
G.
R.
SULLIVAN.
THE
BATTLE
OF
FORMS
IN
Butler
Machine Tool
Co.
Ltd.
v.
Ex-Cell-0 Corpn. (England) Ltd.‘
the
sellers offered
to
sell
a
machine tool
to
the buyers, the offer
being on standard terms which
“
shall prevail
”
over any terms and
conditions in the buyers’ order and which included
a
price variation
clause for increased costs. The buyers’ order form contained standard
terms materially different
a
from those of the sellers and stated that
the agreed price was fixed. The form included
a
tear-off acknowledg-
ment of order slip which stated “We accept your order
on
the
Terms and Conditions stated thereon.” The sellers signed and returned
the slip together with
a
letter stating that they were executing the
order on the terms of their own offer. The machine tool was
constructcd but before delivery the sellers sought to invoke the price
to
Re
Bnlley Hay
&
Co.
Lfd. [1971]
1
W.L.R. 1357. It may be objected that
“
informed acquiescence
”
is not a viable alternative basis
of
decision if, as has been
argued above, a majority in general meeting could not have gratuitously disposed
of
the company’s intcrest in the licence. However, it may be thut subject to itlira
vires,
shareholders can unanimously make
a
disposal which
a
majority could not forcc on
a minority. Furthermore
“
informal acquiescence” may operate as a form of
ectoppel rather than as another mode
of
Corporate decision taking.
21 Inspcctors’ Report into Ferguson and General Invcstmcnts Ltd. (HMSO) 1970
(Dowgate Properties).
22
Inspectors’ Report into Peachey Properties Ltd. (HMSO) 1979.
23
Inspectors’ Report into Lonhro Ltd.
(HMSO)
1976.
24 Inspectors’ Report into London and Counties Securities Ltd. (HMSO) 1976.
26
Inspcctors’ Report into the Lowson Group (HMSO) 1975.
1
119791
1
W.L.R.
401;
[1979]
1
All
E.R. 965.
2
The buyers’
form
stipulated that the agreed price include the cost
of
delivery
and installation, the sellers’
form
did
not.
The buyers provided
for
delivery in
10-11
months, the sellers for
10
months. The buyers’ form allowed them to reject
if
the
goods wcre faulty in any rcspcct and
to
cancel for late delivery. The sellers’ form
did not allow
of
either.
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