231:
them without objection. No one ever did object. He never read them or knew what was in them. No matter how unreasonable they were, he was bound. All this was done in the name of "freedom of contract." But the freedom was all on the side of the big concern which had the use of the printing press. No freedom for the little man who took the ticket or order form or invoice. The big concern said, "Take it or leave it." The little man had no option but to take it. The big concern could and did exempt itself from liability in its own interest without regard to the little man. It got away with it time after time. When the courts said to the big concern, "You must put it in clear words," the big concern had no hesitation in doing so. It knew well that the little man would never read the exemption clauses or understand them.
42:
255:
cloaks a secret weapon. They used it to stab the idol in the back. This weapon was called "the true construction of the contract." They used it with great skill and ingenuity. They used it so as to depart from the natural meaning of the words of the exemption clause and to put upon them a strained and unnatural construction. In case after case, they said that the words were not strong enough to give the big concern exemption from liability; or that in the circumstances the big concern was not entitled to rely on the exemption clause. If a ship
620:
583:
562:
541:
508:
260:
liability. If a shipowner delivered goods to a person without production of the bill of lading, he could not escape responsibility by reference to an exemption clause. In short, whenever the wide words – in their natural meaning – would give rise to an unreasonable result, the judges either rejected them as repugnant to the main purpose of the contract, or else cut them down to size in order to produce a reasonable result. This is illustrated by these cases in the House of Lords:
286:. But when the clause was itself reasonable and gave rise to a reasonable result, the judges upheld it; at any rate, when the clause did not exclude liability entirely but only limited it to a reasonable amount. So where goods were deposited in a cloakroom or sent to a laundry for cleaning, it was quite reasonable for the company to limit their liability to a reasonable amount, having regard to the small charge made for the service. These are illustrated by
364:
be impossible to say that one view is demonstrably wrong and the other demonstrably right. It must follow, in my view, that, when asked to review such a decision on appeal, the appellate court should treat the original decision with the utmost respect and refrain from interference with it unless satisfied that it proceeded upon some erroneous principle or was plainly and obviously wrong.
363:
the court must entertain a whole range of considerations, put them in the scales on one side or the other, and decide at the end of the day on which side the balance comes down. There will sometimes be room for a legitimate difference of judicial opinion as to what the answer should be, where it will
354:
the passing of ... the Unfair
Contract Terms Act 1977, had removed from judges the temptation to resort to the device of ascribing to words appearing in exemption clauses a tortured meaning so as to avoid giving effect to an exclusion or limitation of liability when the judge thought that in the
254:
Faced with this abuse of power – by the strong against the weak – by the use of the small print of the conditions – the judges did what they could to put a curb upon it. They still had before them the idol, "freedom of contract." They still knelt down and worshipped it, but they concealed under their
259:
from the contractual voyage, the owner could not rely on the exemption clause. If a warehouseman stored the goods in the wrong warehouse, he could not pray in aid the limitation clause. If the seller supplied goods different in kind from those contracted for, he could not rely on any exemption from
181:
held that the goods sold were not "seeds" at all and he did not look at the statute. On the basis that clause 1 said 'any seeds or plants sold', he held that what was sold could not be considered seeds (because they simply did not work) and therefore the exclusion in clause 2, which was attached to
164:
The two main issues in the case were whether the limitation clause should be interpreted to cover the seeds actually sold, given that the seeds were wholly defective and so did not do a seed's job at all and whether, under the Unfair
Contract Terms Act 1977, s 2(2) the limitation was reasonable (s
230:
None of you nowadays will remember the trouble we had – when I was called to the Bar – with exemption clauses. They were printed in small print on the back of tickets and order forms and invoices. They were contained in catalogues or timetables. They were held to be binding on any person who took
426:
By contrast, Lord
Denning thought that the ability of the courts to control unfair terms, now granted through legislation, had made it possible to apply sensible principles when construing contracts. There was no need to twist the meaning of words to reach a fair result, if unfair contract terms
160:
seed for £201.60. An invoice sent with the delivery was considered part of the contract and limited liability to replacing 'any seeds or plants sold' if defective (clause 1) and excluding all liability for loss or damage or consequential loss or damage from use of the seed (clause 2). 63 acres
335:
I agree entirely with Lord Bridge's speech and there is nothing that I could usefully add to it; but I cannot refrain from noting with regret, which is, I am sure, shared by all members of the
Appellate Committee of this House, that Lord Denning M.R.'s judgment in the instant case, which was
368:
On the question of fairness, the decisive evidence was that witnesses (for the seedsmen) had said the industry's practice had always been to negotiate damages claims if they seemed genuine and justified. That was clear recognition that the relevant condition would not be fair or reasonable.
336:
delivered on
September 29, 1982, is probably the last in which your Lordships will have the opportunity of enjoying his eminently readable style of exposition and his stimulating and percipient approach to the continuing development of the
552:
409:'s last judgment in the Court of Appeal before he retired. His dissenting opinion, which was upheld by the House of Lords, was partly a riposte to the last century of common law, dating back at least to
202:
dissented from the majority's reasoning and argued the clause applied to limit liability for the seeds sold even if the seeds were defective. Ultimately, all agreed that the clause was invalid under the
344:
Lord Bridge gave the leading judgment. He agreed with Lord
Denning MR that clause 2 applied to the seeds in question, and that it was a "strained construction" (following Lord Diplock's dicta in
810:
297:
41:
236:
411:
594:
346:
240:(in which there was exemption from liability, not on the ticket, but only in small print at the back of the timetable, and the company were held not liable) and
831:
481:
797:
717:
328:, in favour of dismissing this appeal upon grounds which reflect the reasoning although not the inimitable style of Lord Denning M.R.'s judgment in the
312:
unanimously upheld the judgment of Lord
Denning that the limitation of liability to the cost of the seeds was not effective, because given the relative
1136:
1131:
449:
309:
204:
645:
191:
1126:
874:
686:
325:
274:
122:
884:
752:
673:
659:
775:
329:
474:
380:
291:
246:(in which there was complete exemption in small print at the bottom of the order form, and the company were held not liable).
852:
764:
733:
710:
531:
376:
317:
313:
141:
1141:
372:
242:
1080:
198:, held the limitation clause did not apply because, like Parker J, they held that what was sold was not seed. However,
1121:
467:
519:
324:
My Lords, I have had the advantage of reading in advance the speech to be delivered by my noble and learned friend,
821:
631:
199:
1108:
F Kessler, ‘Contracts of
Adhesion – Some Thoughts About Freedom of Contract’ (1943) 43(5) Columbia Law Review 629
703:
218:
In a memorable passage and his last-ever judgment, Lord
Denning MR outlined the problem of the case in this way.
863:
842:
444:
to give a "fair result" through an unreasonable interpretation of an exemption clause) still forms part of the
428:
17:
742:
619:
582:
561:
540:
507:
416:
145:
1067:
895:
573:
195:
178:
156:
Finney Lock Seeds Ltd agreed to supply George
Mitchell (Chesterhall) Ltd with 30 lb of Dutch winter
786:
614:
577:
535:
502:
420:
391:
387:
224:
556:
445:
436:
1146:
610:
256:
498:
98:
1115:
137:
677:
663:
635:
340:
to which he has himself in his judicial lifetime made so outstanding a contribution.
1081:"Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts"
649:
600:
406:
282:
in the Privy Council; and innumerable cases in the Court of Appeal, culminating in
47:
161:(250,000 m) of crops failed, and £61,513 was claimed for loss of production.
234:
It was a bleak winter for our law of contract. It is illustrated by two cases,
337:
459:
212:
695:
208:
157:
316:
and capability of insurance, it failed the reasonableness test.
699:
463:
390:
and Patrick Twigg made submissions for George Mitchell and
359:
On the question of the term's fairness, Lord Bridge held,
67:
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd
133:
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd
298:
Gillespie Bros & Co Ltd v Roy Bowles Transport Ltd
427:could be scrapped on the ground that one party had
115:
105:
93:
88:
80:
72:
62:
54:
34:
237:Thompson v London, Midland and Scottish Railway Co
140:and exclusion clauses. It was decided under the
412:Printing and Numerical Registering Co v Sampson
361:
352:
322:
220:
596:Photo Production Ltd v Securicor Transport Ltd
347:Photo Production Ltd v Securicor Transport Ltd
711:
475:
448:'s consumer protection law as imposed in the
284:Levison v Patent Steam Carpet Cleaning Co Ltd
266:London and North Western Railway Co v Neilson
8:
833:Unfair Terms in Consumer Contracts Directive
799:Stewart Gill Ltd v Horatio Myer & Co Ltd
280:Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd
35:George Mitchell Ltd v Finney Lock Seeds Ltd
18:George Mitchell Ltd v Finney Lock Seeds Ltd
718:
704:
696:
482:
468:
460:
182:what was sold in clause 1, had no effect.
40:
31:
450:Unfair Consumer Contract Terms Directive
394:made submissions for Finney Lock Seeds.
205:Supply of Goods (Implied Terms) Act 1973
907:
646:HIH Casualty Ltd v Chase Manhattan Bank
442:Houghton v Trafalgar Insurance Co. Ltd
355:circumstances to do so would be unfair.
350:to say otherwise. At page 810 he said,
875:Cavendish Square Holding BV v Makdessi
687:Interpreting contracts in English law
275:Canada Steamship Lines Ltd v The King
7:
885:Unfair terms in English contract law
753:Woodman v Photo Trade Processing Ltd
674:Oceanbulk Shipping SA v TMT Asia Ltd
660:Chartbrook Ltd v Persimmon Homes Ltd
776:George Mitchell v Finney Lock Seeds
270:Cunard Steamship Co. Ltd. v Buerger
25:
288:Gibaud v Great Eastern Railway Co
811:St Albans DC v Int Computers Ltd
618:
581:
560:
539:
506:
1137:1983 in United Kingdom case law
1132:English interpretation case law
292:Alderslade v Hendon Laundry Ltd
215:) because it was unreasonable.
853:DGFT v First National Bank plc
765:Phillips Products Ltd v Hyland
734:Unfair Contract Terms Act 1977
142:Unfair Contract Terms Act 1977
46:Cabbage field at Chesterhall,
1:
1127:English unfair terms case law
520:Hartog v Colin & Shields
111:Lord Bridge and Lord Diplock
523:[1939] 3 All ER 566
1163:
822:Nash v Paragon Finance plc
632:ICS Ltd v West Bromwich BS
532:Canada Steamship Lines v R
262:Glynn v Margetson & Co
243:L'Estrange v F Graucob Ltd
882:
871:
860:
849:
840:
829:
818:
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794:
783:
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761:
749:
740:
731:
684:
670:
656:
642:
628:
607:
591:
570:
549:
528:
516:
495:
490:Construing contract terms
423:as a core public policy.
320:gave the first judgment.
136:is a case concerning the
120:
110:
39:
864:OFT v Abbey National plc
843:Consumer Rights Act 2015
578:[1976] 1 WLR 989
429:unequal bargaining power
726:Sources on unfair terms
557:[1953] 2 QB 450
386:In the House of Lords,
27:1983 British court case
743:Sale of Goods Act 1979
678:[2010] UKHL 44
664:[2009] UKHL 38
636:[1997] UKHL 28
366:
357:
342:
326:Lord Bridge of Harwich
302:
146:Sale of Goods Act 1979
650:[2003] UKHL 6
615:[1986] QB 644
601:[1980] UKHL 2
536:[1952] AC 192
1142:House of Lords cases
923:On 29 September 1982
896:English contract law
574:The Diana Prosperity
97:1 Lloyd’s Rep 476;
787:Smith v Eric S Bush
421:freedom of contract
388:Leonard Hoffmann QC
225:freedom of contract
125:, exclusion clauses
1122:Lord Denning cases
553:Rose Ltd v Pim Ltd
503:(1871) LR 6 QB 597
446:European Community
440:rule (as used in
437:contra proferentem
310:The House of Lords
1085:eur-lex.europa.eu
914:1 Lloyd’s Rep 476
891:
890:
693:
692:
250:The secret weapon
129:
128:
16:(Redirected from
1154:
1096:
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1093:
1091:
1077:
1071:
1065:
1059:
1056:
1050:
1049:(1875) 19 Eq 462
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44:
32:
21:
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768:
757:
745:
736:
727:
724:
694:
689:
680:
666:
652:
638:
624:
617:
611:Thake v Maurice
603:
595:
587:
580:
566:
559:
545:
538:
524:
512:
505:
491:
488:
458:
419:had propounded
403:George Mitchell
400:
330:Court of Appeal
307:
200:Lord Denning MR
188:
186:Court of Appeal
176:
171:
154:
50:
28:
23:
22:
15:
12:
11:
5:
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499:Smith v Hughes
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457:
454:
417:Lord Jessel MR
399:
396:
392:Mark Waller QC
381:Lord Brightman
306:
305:House of Lords
303:
223:The heyday of
207:(see now s 55
190:The majority,
187:
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175:
172:
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153:
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127:
126:
123:interpretation
121:Unfair terms,
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63:Full case name
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58:House of Lords
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45:
37:
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26:
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14:
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2:
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455:
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451:
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443:
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434:However, the
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404:
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197:
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185:
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151:
149:
147:
143:
139:
138:sale of goods
135:
134:
124:
119:
114:
109:
106:Case opinions
104:
100:
96:
94:Prior actions
92:
87:
83:
79:
75:
71:
68:
65:
61:
57:
53:
49:
43:
38:
33:
30:
19:
1088:. Retrieved
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1036:
1027:
1018:
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991:
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973:
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937:
928:
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910:
873:
862:
851:
820:
809:
796:
785:
774:
763:
756:(1981) Ex CC
751:
672:
658:
644:
630:
609:
593:
572:
551:
530:
518:
497:
441:
435:
433:
425:
410:
407:Lord Denning
402:
401:
398:Significance
385:
377:Lord Roskill
373:Lord Scarman
371:
367:
362:
358:
353:
345:
343:
334:
323:
318:Lord Diplock
308:
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132:
131:
130:
89:Case history
76:30 June 1983
66:
48:East Lothian
29:
1068:Case report
932:QB 284, 297
383:concurred.
1116:Categories
1103:References
1090:7 February
338:common law
174:High Court
99:EWCA Civ 5
1013:2 KB 426;
314:positions
272:; and by
213:UCTA 1977
192:Oliver LJ
169:Judgments
101:, QB 284
1058:1 QB 247
968:2 AC 263
950:2 KB 394
456:See also
257:deviated
209:SGA 1979
179:Parker J
144:and the
116:Keywords
84:2 AC 803
81:Citation
1147:Cabbage
1040:AC 827)
1031:QB 400.
941:1 KB 41
196:Kerr LJ
158:cabbage
73:Decided
1022:KB 189
995:AC 576
986:AC 192
959:AC 351
415:where
1004:QB 69
902:Notes
165:11).
152:Facts
55:Court
1092:2023
977:AC 1
405:was
379:and
295:and
278:and
211:and
194:and
1118::
1083:.
452:.
431:.
375:,
332:.
268:;
264:;
148:.
1094:.
1070:.
719:e
712:t
705:v
483:e
476:t
469:v
20:)
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