ABSTRACT
In the last chapter, we looked at how terms are incorporated into contracts and the various devices employed by the judiciary to limit the scope of limitation and exclusion clauses. Apart from isolated statutory measures, the legal struggle against such unfair terms was carried on until the 1970s by the judges, who as we saw in the last chapter, devised a variety of weapons to render such clauses inoperative. This is especially the case where they operated against the interests of consumers in contracts for the sale of goods or supply of services. The problem was that judicial regulation merely drove the drafters of exclusion clauses to renewedefforts toproduce ‘judge-proof’ formsofwords to which the judiciary did not always feel equipped to respond. The main problem was that the judges felt that they had no general power to strike down unreasonable exclusion clauses as being, for example, against public policy and therefore void. They felt that the concept of freedom of contract overrode such an approach. It was left, instead for Parliament to take up the challenge.
