THE LAW COMMISSIONS‘ FIRST REPORT ON EXEMPTION CLAUSES1
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01254.x |
| Date | 01 January 1970 |
| Published date | 01 January 1970 |
REPORTS
OF
COMMITTEES
THE LAW
COMMISSIONS’
FIRST
REPORT
ON
EXEMPTION
CLAUSES
’
THIS Report is the first fruit of the Law Commissions’ consideration
of exemption clauses in contracts and
is
confined
to
implied terms
in contracts of sale of goods (contracts for the supply of services
and clauses excluding liability for negligence will be the subject of
a
later report).
It
is however wider in scope than its title suggests,
for
it
also deals with the whole question of re-drafting the implied
conditions and warranties in the SaIe of
Goods
Act. The two
aspects of the First Report can therefore be dealt with separately.
Implied terms
The Report recommends the repeal and re-enactment of sections
12
and
14
of the Sale of
Goods
Act
1893,
a new subsection for section
13,
and the addition
of
some relevant definitions to the definition
section
(s.
62).’
Title.
No
real change is proposed to section
12
(implied condi-
tion and warranties of title), though there is
a
new draft to take
account of the recommendations as to exemption clauses later des-
cribed. The main point of interest is that the proposal of the Law
Reform Committee’ that the principle laid down
in
Rowland
v.
Diva11
should be changed is not yet
to
be implemented. It will
be recalled that in that case a buyer who lost the goods to the true
owner because of his seller’s lack
of
title was entitled
to
the return
of the price in full even though he had had the use of the goods for
some months. The Law Reform Committee thought that the buyer
should give credit for my benefit he may have had from the goods.
The Law Commissions agree with this
in
principle, but point out a
number of practical problems that would arise and accordingly
conclude that legislation must await a study of the rules relating
to
the law of restitution.
Criticisms of section
13
(implied condition of cor-
respondence with ‘description)-that there
is
no
need to have an
implied term when the description is already an express term, that
the section is applied
too
strictly,6 and that description is a funda-
mental term anyway40 not impress the Commissions, for section
13
“
has proved to be
8
valuable instrument for the protection of
the buyer.” But there is one question: does section
13
apply
1
The Law Commission and
the
Scottish Law Commission: Exemption Clauses
in Contracts-Firs+
Report:
Amendments to the Sale
of
Goods Act
1893,
July,
1969
(Law Com.
No.
24;
Scot. Law Com.
No.
12).
Description.
2
References
to
sections hereafter are
to
the Sale
of
Goods
Act
1893.
8
Twelfth
Report,
Transfer
of
Title
to
Chattels,
1966;
Cmnd.
29958,
para.
36.
4
[1923]
2
K.B.
500,
C.A.
5
para.
15.
13
As in
Ascos
Ltd.
V.
Romasen
[1933]
A.C.
470,
H.L.
See
(1966)
29
M.L.R.
413, 418.
77
To continue reading
Request your trial