Unreasonable Standard Terms

Date01 July 1997
DOIhttp://doi.org/10.1111/1468-2230.00101
AuthorRobert Bradgate
Published date01 July 1997
Reckley (No 2) may be viewed as at odds with the principle underlying a broad
approach to the availability of judicial review of the prerogative of mercy.
It has also been submitted that the principle of fairness could in any event have
been utilised to require that the advisory committee, prior to its offering a
recommendation to the minister, accord the petitioner the procedural entitlements
he sought, by separating the activities of the committee from those of the minister
and Governor-General. This separation is supported both by the fact that neither
the minister nor the Governor-General is constitutionally obliged to act in
accordance with the committee’s recommendations, and by the Privy Council’s
express recognition of the importance in practice of procedural fairness attaching
where the condemned person does actually make representations to the
committee.
64
It has been observed that ‘in the sterile arena of legal debate it is
often easy to lose sight of what the real subject-matter of the dispute is,’
65
and it is
a matter of regret that their Lordships considered it inappropriate to accord the
petitioner basic procedural safeguards in a matter as fundamental as whether he
should live or die.
Unreasonable Standard Terms
Robert Bradgate*
The benefits of standard terms are well known and widely acknowledged. So, too,
is their potential for abuse and the need to control them. Although there are now
effective statutory controls on the use of standard terms in both business
1
and
consumer contracts,
2
the common law, too, retains its vitality, and in AEG (UK)
Ltd vLogic Resource Ltd
3
the majority of the Court of Appeal invoked the
common law to strike down a clause of a type commonly found in standard terms
for the supply of goods. The decision is therefore not only of practical significance,
but also raises interesting questions about the interaction of the statutory and
common law controls on exclusions.
Facts and decision
The defendant — effectively a ‘one-man company’ — ordered cathode ray tubes
from the plaintiff — ‘a large and extremely well-known multinational’
4
—to
64 The petitioner’s legal advisers had in fact written to the advisory committee in 1992, inviting them to
take certain features of his case into account. Despite issuing a reminder, they received no
acknowledgment or response to that letter: n 10 above, 392H.
65 n 22 above, 403.
* Institute for Commercial Law Studies, University of Sheffield.
I am grateful to Professor Roger Brownsword for his helpful comments on an earlier draft of this note,
although I, of course, remain responsible for the opinions and any errors it now contains.
1 Principally, Unfair Contract Terms Act 1977, ss 3, 6 and 7.
2 Unfair Terms in Consumer Contracts Regulations, SI 1994 3159.
3 [1995] CCH Commercial Law Reports 265.
4per Hirst LJ, 266.
The Modern Law Review [Vol. 60
582 The Modern Law Review Limited 1997

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