The Gazette 1979

JULY-AUGUST

1979

GAZETTE

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.

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.

Independent Actuarial Advice regarding Interests in Settled Property and Claims for Damages BACON & WOODROW

Consulting Actuaries 58 Fitzwilliam Square Dublin 2 (Telephone 762031)

Jeremy Phillips.

8 0