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GAZETTE
JULY-AUGUST
1979
the power to rescind has been lost by reason of waiver,
affirmation or acceptance, then a right to damage? will not
exist. Whilst it is understandable that the power to award
compensation by way of damages should only exist if the
right to repudiation which it replaces or limits exists, there
is an argument for dispensing with this requirement be-
cause, at the end of the day, misrepresentees may still be
deprived of any remedy.
Whittling down exemption clauses
Section 43, which has as its counterpart in England
Section 3 of the 1967 Act limits the extent to which a
contract may contain a provision limiting the liability of a
misrepresentor, either in relation to the cause of action
itself or the remedy available. The limiting clause will only
operate in favour of the proferens, (a person seeking to
rely on an exemption clause), if the court considers
reliance " a s being fair and reasonable in the
circumstances of the case."
The schedule to the Act lays down that reasonableness
is to be judged by reference to circumstances which were
in the contemplation of the parties at the time of con-
tracting. Paragraph 2 to the Schedule lays down factors
that the court may avert to if considered relevant by the
judge and those factors will normally provide guidance on
whether the parties were contracting at arms length,
whether the bargain was part of an established
commercial relationship and whether more advantageous
terms could be obtained elsewhere. Section 43 however
will only apply to cases where a misrepresentation has
been made. In other situations it may be necessary to cut
down an exemption clause by resorting to the doctrine of
improvident bargains: See
Grealish
v.
Murphy
[1964]
I.R. 35.
Summary
While the terms of Part V of the Sale of Goods and
Supply of Services Bill 1978 will be effective in a few
cases the primary objectives that underlie the provisions
of that Part are largely subverted by the proposed Section
40."Section 40 should therefore be amended. While some
uncertainty remains in relation to the measure of damages
recoverable under the Bill the English courts have
awarded damages for loss of bargain even though Section
42( 1) is analagous to a right of action in tort. Further con-
sideration of the vexed problem of the unconscionable
exemption clause will be necessary notwithstanding
Section 43.
Independent Actuarial Advice regarding
Interests in Settled Property
and
Claims for Damages
BACON & WOODROW
Consulting Actuaries
58 Fitzwilliam Square
Dublin 2
(Telephone 762031)
Book Review
An Introductory Guide to EEC Competition Law and
Practice - Valentine Korah (ESC Publishing Ltd.,
"Oxford 1978). £6.75 (£7.20 direct from the
publisher).
The casual purveyor of law books might well remark that
there is no area of legal publishing apparently as
competitive as that of competition law; and this little book
(142 pages
in toto)
is the latest in a long line of writings
upon this subject of increasing contemporary interest. Yet
there is certainly a niche for Mrs. Korah's book. If one
views the entire corpus of competition law literature as a
long and shaky ladder which leads the reader from the
murk of ignorance to the radiant sublimity of knowledge,
this work may be likened to those first few lowly rungs
which must be safely negotiated by the inexperienced
reader before further ascent is contemplated. Indeed this
Introductory Guide
is aimed especially at the reader who
may have some knowledge of business or commercial
practice but who, while not a lawyer, must converse with
lawyers and grasp their concepts before he can decide
which course of action he is to follow. That the book
succeeds in this aim is attributable largely to its brevity
and its emphasis upon matters of principle, rather than
detail.
The format of the
Guide
is simple. The reader is
introduced to the basic sources and enforcement
machinery of competition law; then follows an account of
articles 85 and 86 of the Treaty of Rome and their effect.
Those articles are appended together with. Regulation
17/62, a glossary of terms and a brief but useful
bibliography of further reading. There are no diagrams or
flow-charts. The author's style is generally lucid if
occasionally awkward (the subject itself does not en-
courage flowing prose). Fortunately it is neither obscure
nor condescending in tone, as introductory works may
sometimes appear.
The book bears some of the haste with which it was
brought out. There are, for example, rather more errors of
spelling and punctuation than one would like to see,
especially in a book of this brevity. None of these errors
are fatal, though one or two would be annoying to the
completely new reader; the
United Brands
case is twice
(at pp. 32 and 99) cited for 1975, and the reader seeking
the full reference from the index will have to decide
whether it is the 1976 or the 1978 citation |to which the
author refers. While on the subject of the 1978
United
Brands
decision, the author makes it perfectly clear that
her views on excessive pricing are not those which are
held by the officers of the Commission. It is wise that she
confines her criticisms largely to the practical aspect of
that case — the problem of advising dominant firms in
advance as to the prices they may charge without running
the risk of fines — and does not seek to answer the vexed
and difficult question: who or what, other than the market
itself, is to determine the economic value of a product?
That problem is left for more detailed works to solve.
Jeremy Phillips.
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