The Core of A Contract
| Author | L. W. Melville |
| Date | 01 January 1956 |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00342.x |
| Published date | 01 January 1956 |
THE CORE
OF
A CONTRACT
DEVLIN
J.
in
Smeaton Hanscombe
Co.,
Ltd.
v.
Sassoon
I.
Setty
4
Co.
(No.
1)
has provided us with a definition of a
“
fundamental
term
’’
of a contract, in further development of this, by
no
means
new, conception. He has also provided an illustration of such a
term, and
a
statement of principle concerning the effect of a breach.
The application
so
far is to protective clauses which attempt to
exclude liability for breaches of contract, but it may have other
applications, for example, to mistake in formation of agreement.
There is, however, in this decision
no
attempt to survey the
Beld,
or
to deal with cases which may be in conflict. There are
such cases, and
a
statutory provision, and, in consequence, the
matter deserves attention, for
it
is
believed that the development
of the idea would be beneficial.
What would appear at first sight to be the greatest difficulty
is
probably the least, namely, the decision of
L’Estrange
V.
Graucoba
and
a
problem that that case suggests.
It
will be
recalled that the plaintiff had agreed to buy a slot machine which
failed to function, and she sought recovery of her money. The
defendants relied
on
an express clause
in
the contract which
excluded both express and implied conditions and warranties, but
adding
“
except
so
far as stated herein.” The court accepted that
clause as effective to relieve the defendants of liability in respect of
the slot machine’s failure to work, and the fact that
it
could not be
made to work.
It
will be observed that the clause used in that
case contained a self-contradiction, since
it
purported to exclude
(inter alia)
express terms, yet
it
excepted from that exclusion
“
terms stated therein.” Provided that that document represents
the whole of the terms agreed (as to which there seems to be
no
doubt)
it
does not in fact exclude express terms. This fact seems
to
have been overlooked, acd the case proceeded
on
the basis that
express conditions were excluded. In consequence the decision is
generally regarded as authority for the proposition that such
exclusion of express terms is possible and permissible legally, an
interpretation that is strengthened by the court’s having spoken of
the term used as having closed the gap left by
Andrews
v.
Singer,’
where there was a clause which did not purport to do more than
exclude implied terms. Does this mean, then, that a man can
contract to supply a slot machine, and, by an appropriate clause,
shed any liability for delivering an unworkable thing,
or
a dustbin,
or
a piece of scrapmetal?
It
is not enough to say that
if
he delivers
1
[1953]
1
W.L.R.
1468.
a
[I9341
2
K.B.
594.
J
[l934]
1
K.B.
17.
26
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